CMS to Permanently Cover Audio-Only Telemedicine for Mental Health

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Foley & Lardner LLPEditor’s Note: This article is the second of a four-part series discussing specific telemedicine and digital health features in the 2022 Medicare Physician Fee Schedule proposed rule.  To read part 1 of this series on the new Remote Therapeutic Monitoring codesclick here.

The Centers for Medicare & Medicaid Services (CMS) has proposed permanent Medicare coverage of audio-only mental health telehealth services. Currently, Medicare covers audio-only telehealth under temporary waivers that will expire when the Public Health Emergency (PHE) ends. The change, contained in the 2022 Physician Fee Schedule proposed rule, is intended to maintain patient access to mental health care post-PHE and reflects CMS’ growing confidence in virtual care technologies.

This article explains the proposed requirements and highlights the questions for which CMS seeks public comment.

Audio-Only Telehealth Coverage for Mental Health Services

CMS’ proposal would reimburse audio-only telehealth services for the diagnosis, evaluation, or treatment of mental health disorders furnished to established patients when the originating site is a patient’s home. It would accomplish this change by amending the definition of “interactive telecommunications system” under Medicare regulations. As is too-often seen with telemedicine regulations, the proposed rule is technical and nuanced; not a simple “green light” for practitioners to easily deliver audio-only services.

Here is a plain summary of the proposed requirements to cover audio-only telehealth:

  1. Services are limited to diagnosis, evaluation, or treatment of mental health disorders;
  2. Available to established patients only;
  3. The distant site practitioner must have furnished the patient with an in-person item or service within the 6-months prior to the audio-only mental health telehealth service;
  4. The patient must be located at his/her home (as the originating site), not another location;
  5. The distant site practitioner must have the technical capability at the time of the service to use interactive audio-video modality with the patient;
  6. The patient is not capable of, does not wish to use, or does not have bandwidth/access to use interactive audio-video modality; and
  7. The distant site practitioner appends to the claim a service-level modifier to identify the service as audio-only and to certify compliance with these requirements.

Why Did CMS Propose Making Audio-Only Mental Health Permanent?

During the PHE, CMS temporarily waived the interactive audio-video requirement for certain mental health and evaluation and management (E/M) services delivered via telehealth. Under the waiver, Medicare covers these telehealth services even when delivered via audio-only technology. Once the PHE concludes, the emergency waiver authority ends, and so does audio-only telehealth.

CMS has historically been reluctant to cover audio-only technology out of concern it could lead to inappropriate overutilization of services and concern that audio-video visualization is necessary to fulfill the full scope of service elements of CPT codes. Yet, given the widespread use of audio-only services during the PHE, CMS reconsidered its position and altered its policy to respond to changing patient needs and evolving clinical practices.

Indeed, preliminary claims data indicates audio-only E/M visits were some of the most commonly performed telehealth services during the PHE, and the majority of these audio-only services were for treatment of mental health conditions. There is a recognized shortage of mental health care professionals. Swaths of the United States have poor broadband access due to geographic, infrastructure, or socioeconomic challenges. Additionally, some areas suffer a devastating combination of both inadequate broadband and physician shortages.

Clinically, mental health services often differ from most other Medicare telehealth services in that mental health care often involves verbal conversation, where visualization between the patient and practitioner may be less critical. Considering the social determinants that affect an individual’s ability to receive mental health care, assessing clinical safety, and recognizing that patients may have come to rely upon the use of audio-only technology to receive mental health care, CMS opined that terminating the audio-only flexibility at the end of the PHE could harm access to care.

What Can Stakeholders Do Now?

Providers, technology companies, and virtual care entrepreneurs interested in Medicare coverage of audio-only telehealth services should consider providing comments to the proposed rule. CMS specifically asked for comments on the following:

  • Should all mental health telehealth service codes be allowed to use audio-only communication?
  • What, if any, additional documentation should be required in the patient’s medical record to support the clinical appropriateness of providing audio-only telehealth services for mental health in the event of an audit or claims denial? (e.g., information about the patient’s level of risk and any other guardrails that are appropriate to demonstrate clinical appropriateness, and minimize program integrity and patient safety concerns.)
  • Should CMS disallow audio-only for certain higher-level services, such as level 4 or 5 E/M visit codes, when furnished alongside add-on codes for psychotherapy, or codes that describe psychotherapy with crisis?

CMS is soliciting comments on the proposed rule until 5:00 p.m. on September 13, 2021. Anyone may submit comments – anonymously or otherwise – via electronic submission at this link. When commenting, refer to file code CMS-1751-P in your submission. Alternatively, commenters may submit comments by mail to:

  • Regular Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1751-P, P.O. Box 8016, Baltimore, MD 21244-8016.
  • Express Overnight Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1751-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850

If submitting via mail, please be sure to allow adequate mailing time before the date comments are due to CMS.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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