The American Telemedicine Association Again Leads the Industry Commenting on Medicare Updates to Telehealth Policy

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Faegre Drinker Biddle & Reath LLP

Faegre Drinker professionals Sarah-Lloyd Stevenson, Megan Herber, Nisha Quasba and Libby Baney provide ongoing support to the American Telemedicine Association’s (ATA) policy work.

This month, the comment period for the Calendar Year 2022 Physician Fee Schedule (CY 2022 PFS) will close, marking an important regulatory step in how providers will be reimbursed for health care services next year. With the assistance of Faegre Drinker professionals, the American Telemedicine Association (ATA) — the only national organization exclusively dedicated to advancing telehealth policy — submitted detailed, industry-leading comments to encourage appropriate telehealth coverage and reimbursement policies in the final rule.

Physician Fee Schedule: The Physician Fee Schedule (PFS) is an annual rulemaking process through which the Centers for Medicare and Medicaid Services (CMS) sets physician coverage and reimbursement rates for the upcoming calendar year. CMS releases the proposed PFS each summer, recommending coverage and reimbursement changes. The proposed rule remains open for comments this year through September 13, and the rule will likely be finalized in November or December. Given the expansive reach of the annual PFS, this rulemaking process typically marks an opportunity for the agency to make significant policy changes under their authority, including policies that impact Medicare beneficiaries’ access to telehealth services.

Telehealth Services: The ATA’s comprehensive comments to the proposed rule focused largely on the need to expand access to telehealth services. During the COVID-19 public health emergency (PHE), both Congress and CMS have taken widespread action to expand access to telehealth services in Medicare. Historically, federal law has severely limited telehealth coverage and reimbursement in the Medicare program, but many of these restrictions have been waived during the pandemic. Once the PHE ultimately expires, these flexibilities will go away. As such, CMS’s PFS process is limited on how much the agency can permanently expand telehealth access.

In the CY 2022 PFS, CMS proposes allowing the Category 3 telehealth list, an inventory of temporarily reimbursable telehealth services, to remain through the end of CY 2023. The ATA notes this is an important policy that will offer a post-PHE glidepath for patients and providers, allowing additional services to be reimbursed even after the PHE ends. However, it is important to note that even with the continuation of Category 3 services, if the PHE ends, statutory restrictions on which Medicare patients are eligible to access these services will snap back into effect.

Telemental Health Services: While post-PHE statutory restrictions remain in law for most telehealth services, Congress did act at the end of 2020 to allow permanent access to telemental health services regardless of a patient’s geographic or physical location. The CY 2022 PFS takes necessary steps to implement this new policy, which was signed into law as Section 123 of the Consolidated Appropriations Act. While the ATA notes the importance of expanding access to telemental health services, their comments also reflect an industry-wide concern regarding the law’s arbitrary requirement for a patient to see a provider in-person within a six-month period before being eligible for a telemental health service. The ATA further comments that CMS unnecessarily requires Medicare patients to have recurring in-person visits every six months to qualify for telehealth.

The ATA’s letter also commends CMS for working to allow Federally Qualified Health Centers and Rural Health Clinics to offer telemental health services starting in 2022, aligning these safety net providers with fee-for-service providers.

Remote Therapeutic Monitoring and Remote Patient Monitoring: For the first time, the PFS looks to cover non-physiologic remote monitoring services through new coverage and reimbursement for remote therapeutic monitoring (RTM). The ATA commends CMS on their swift action adopting, covering and reimbursing RTM codes as proposed in the CY 2022 PFS. However, the ATA further details how the approach taken by CMS in the proposed rule may have unintended consequences including disallowing certain relevant providers from using the new codes and limiting physicians from billing for incident-to services. As such, ATA’s letter details alternate options, including the use of G-codes to ensure RTM is deployed to Medicare beneficiaries in an appropriate manner.

The ATA further expressed concerns that CMS neglected to address remote physiologic monitoring (RPM) in the CY 2022 PFS. For example, the ATA’s comments on the CY 2021 PFS proposed rule last year included significant feedback on CMS’s then-proposed RPM policies, which were not entirely addressed in the CY 2021 final rule. In this year’s comments, the ATA explains that CMS missed an opportunity to correct these policies by leaving RPM policy out of the CY 2022 PFS proposed rule.

The comment period for the CY 2022 PFS will remain open until 5:00 p.m. ET on September 13. Until that time, various stakeholders will continue to comment on countless measures included in the expansive proposed regulations. Telehealth will undoubtedly continue to be a key focus for many commenters on this policy and for many stakeholders as they advocate before federal agencies and Congress.

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