COVID-19: Here’s What CMS Will Do With the Temporary Telehealth Codes When the PHE Ends

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Foley & Lardner LLPThe Centers for Medicare & Medicaid Services (CMS) recently issued its proposed 2021 Physician Fee Schedule rule, enumerating the services CMS proposes to add (and remove) from the list of telehealth services covered under Medicare. This year’s list is unusually robust because CMS took into consideration all the telehealth services Medicare currently covers on a temporary basis due to the COVID-19 Public Health Emergency (PHE). 

CMS grouped the telehealth services into three lists: 1) nine (9) codes that will become permanent; 2) seventy-four (74) codes that will be removed when the PHE expires; and 3) thirteen (13) codes to add to the list, but only on a temporary basis (CMS dubbed these Category 3 codes). Concurrent with the CMS proposed rule, the White House issued an Executive Order designed to enhance access to telehealth services under Medicare by charging CMS to create even more virtual care coverage opportunities. 

This article discusses the new Medicare telehealth service code proposals specifically related to the Public Health Emergency. For a companion piece discussing CMS’ proposed 2021 changes for Medicare telehealth and virtual care generally, click here

Telehealth services that will become permanent

CMS proposed adding nine codes to the list of telehealth services covered under Medicare, to remain covered even after the PHE ends. The codes are set forth in the table below.

Service Type  HCPCS/CPT Codes 
Group Psychotherapy  90853
Domiciliary, Rest Home, or Custodial Care services, Established patients 99334-99335 
Home Visits, Established Patient  99347- 99348 
Cognitive Assessment and Care Planning Services  99483 
Visit Complexity Inherent to Certain Office/Outpatient E/Ms  GPC1X 
Prolonged Services 99XXX 
Psychological and Neuropsychological Testing  96121 

Keep in mind, these codes are already Medicare-covered telehealth services, albeit on a temporary basis under the PHE waiver rules. Subject to CMS’ final rule, these services are expected to be added, on a permanent basis, effective January 1, 2021.

Telehealth services that will be removed when the PHE expires

CMS proposed removing seventy-four (74) codes when the PHE expires. Although CMS temporarily allows the services addressed by these codes to be delivered via telehealth, CMS found no likelihood of clinical benefit after the PHE ends. Even with the development of additional clinical evidence, CMS believes these services are unlikely to satisfy Category 2 criteria to justify including on a permanent basis.;

Service Type  HCPCS/CPT Codes 
Initial nursing facility visits, all levels (Low, Moderate, and High Complexity)  99304-99306 
Psychological and Neuropsychological Testing  96136-96139 
Therapy Services, Physical and Occupational Therapy, all levels  97161-97168, 97110, 97112, 97116, 97535, 97750, 97755, 97760, 97761, 92521- 92524, 92507 
Initial hospital care and hospital discharge day management  99221-99223, 99238- 99239 
Inpatient Neonatal and Pediatric Critical Care, Initial and Subsequent  99468- 99472, 99475- 99476 
Initial and Continuing Neonatal Intensive Care Services  99477-99480 
Critical Care Services  99291-99292 
End-Stage Renal Disease Monthly Capitation Payment codes  90952-90953, 90956, 90959, 90962 
Radiation Treatment Management Services  77427 
Emergency Department Visits, Levels 4-5  99284-99285 
Domiciliary, Rest Home, or Custodial Care services, New  99324-99328 
Home Visits, New Patient, all levels  99341- 99345 
Initial and Subsequent Observation and Observation Discharge Day Management  99217-99220, 99224- 99226, 99234-99236 
While there are many codes slated for removal, this is only a proposed list. Stakeholders can submit comments and clinical data in support of making one or more of these codes permanent. However, barring any such compelling information submitted by telehealth industry advocates, we do not expect these codes to continue as telehealth services after the PHE expires. 

New telehealth services during the Public Health Emergency (Category 3 codes)

CMS created a new category of codes designed for adding new Medicare-covered telehealth services, but on a temporary basis. Codes added this way would remain covered through the end of the year in which the PHE expires. For example, if the PHE expires in March 2021, these codes will remain Medicare-covered telehealth services until December 31, 2021. The reason for this unique approach is because CMS believes these codes have promise to be added on a permanent basis, but require additional data, real-world use experience, and feedback from stakeholders before CMS can make a final determination. CMS will not remove these codes concurrent with the PHE expiration because it wants to give the public an extra opportunity to gather data and submit requests to CMS, asking CMS to add some of these codes to the Medicare telehealth services list on a permanent basis. 

The Category 3 codes demonstrate CMS’ openness to innovation and experimentation as it continues to expand coverage of virtual care services in the Medicare program. In short, Category 3 services are those likely to provide clinical benefit when furnished via telehealth, but for which there is not yet sufficient clinical evidence to evaluate making them permanent under existing Category 1 or Category 2 criteria. For a Category 3 service to become permanent, stakeholders will need to submit to CMS: 1) a description of relevant clinical studies that demonstrate the service, when furnished via telehealth, improves the diagnosis or treatment of an illness or injury, or improves the functioning of a malformed body part (including dates and findings of those studies); and 2) a list and copies of published peer reviewed articles relevant to the service when furnished via telehealth. 

CMS proposed adding the thirteen (13) codes set forth below to the Category 3 list:

Service Type  HCPCS/CPT Codes 
Domiciliary, Rest Home, or Custodial Care services, Established patients  99336-99337 
Home Visits, Established Patient  99349-99350 
Emergency Department Visits, Levels 1-3  99281-99283 
Nursing facilities discharge day management  99315-99316 
Psychological and Neuropsychological Testing  96130- 96133 

These codes are currently listed as Medicare-covered telehealth services for the duration of thePHE, but would be included on a more extended temporary basis, starting January 1, 2021. CMS is accepting public comment regarding whether any additional codes should be added to the Category 3 list.

How to submit comments to CMS

Providers, technology companies, entrepreneurs, and advocates interested in telemedicine and digital health should consider submitting comments to the proposed rule anonymously or otherwise via electronic submission at this link. Alternatively, commenters may submit comments by mail to:

  • Regular Mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1734-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-1734-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850 (for express overnight mail). 

If submitting via mail, please be sure to allow time for comments to be received before the closing date. CMS is soliciting comments on the proposed rule until 5:00 p.m. on October 5, 2020.

Conclusion

The proposed changes for 2021 demonstrate CMS’ commitment to expanding meaningful patient access to care via telemedicine and digital health technology, both during the PHE and beyond. CMS is developing a post-pandemic strategic plan for telehealth, and industry advocates, entrepreneurs, and healthcare providers can use this moment to share their recommendations, ideas, and suggestions during the public comment period. This feedback—both policy ideas and by submitting clinical studies and concrete data—will be vital to CMS’ continued ability to improve and innovate under the Medicare program.

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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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