The Trump administration's fondness for telehealth became a full-blown love affair during the COVID-19 outbreak. Emergency rules suspended requirements on originating sites and geographical limitations, while permitting a host of services from group psychotherapy to initial assessment at nursing home admission. At the same time, payment parity with in-person visits was maintained. In the interests of disease containment, commercial insurers went along with Medicare policy.
What happened next was an explosion of utilization.
CMS has now proposed to make some changes permanent while extending others until the end of next year. Rules suspending requirements that beneficiaries reside in a rural area and originate the telehealth visit from an institutional setting via audio/video, two way teleconferencing can stay in place until the end of the public health emergency.
To make the policy priority more durable, Congress is going to have to get involved and eliminate the limitations on originating site, geography and technology type. Given it is an election year and there is no urgency to act, permanent adoption of these changes are going to have an uncertain legal future for at least the next 12 months or so.
All is not lost. Enter the creative lawyers.
Over the last several years, beginning at the end of the Obama administration, CMS has been adopting codes and definitions that permit services that use telecommunications technology but are NOT telehealth. These include creating separate codes for Remote Physiological Monitoring and defining and establishing codes for Communication Technology-based Services. In other words, these services are not subject to the statutory restrictions of telehealth or dependent on Congress for amendment.
But wait, there is more.
Beginning in 2020 and continuing this year, CMS has made important changes to the supervision requirement of physicians and non-physician practitioners. Under Medicare regulations, Direct supervision by a physician or NPP means they must be immediately available in the same office suite but not necessarily in the same room where the services are being rendered. Under general supervision, the procedure is furnished under a physician's general direction and control but not requiring his/her presence.
These supervision rules have been a hinderance to the proliferation of telemedicine, not to mention productivity. For example, an RN would be unable to conduct a telemedicine visit on behalf of a physician unless he was physicially present in the office suite. CMS has proposed to allow direct supervision via communication technology-based services. Assuming proper state licensure, a call center of RNs could conduct CTBS visits under the supervision of a physician, also via CTBS.
Importantly for TDOC, CMS has also clarified that pharmacists can enter into agreements with physicians as "auxiliary staff" and provide services incident to physician services, such as medication management. Their supervision by a physician could also be accomplished remotely, thus eliminating a long standing barrier for pharmacists to operate at the top of the license: the physicial presence of a physician or NPP in the pharmacy itself.
The provision that supervisory services can be provided via CTBS is scheduled to last until the end of the Public Health Emergency or Jan. 1, 2022, whichever is later. However, CMS has indicated that the extension will serve, in part, to collect information from the public on guardrails that might be put in place to limit fraud, waste and abuse and ensure quality care if the provision is made permanent.
Not to be left out of the policy fun, AMWL may, given their relationships with health systems, benefit from changes to the supervision regulations that affect hospitals. CMS is proposing to make permanent an emergency provision that allows direct supervision to be provided via audio/visual real-time communication for pulmonary, cardiac and intensive rehabiliation services. The change makes it easier for these services to be delivered on an outpatient basis with the physician supervising via technology.
Another change is to allow direct supervision of certain diagnostic tests via communication technology-based services. While many tests can be performed under general supervision, MRIs, CT scans, speech and hearing tests require direct supervision as signified by the number 2 in the column headed "Physician Supervision of Diagnostic Procedures" in the Physicians' Fee Schedule RVU table.
Emily Evans
Managing Director – Health Policy
