On August 3, 2020, President Trump signed the “Executive Order on Improving Rural Health and Telehealth Access” (the Executive Order). The Executive Order directed the Secretary of the Department of Health and Human Services (HHS) to review the temporary telehealth flexibilities authorized during the COVID-19 public health emergency (PHE) and to propose a regulation to extend the measures beyond the timeframe of the PHE and to extend the “services, reporting, staffing and supervision flexibilities” provided to Medicare providers located in rural areas.

The Executive Order also directed the Secretary to announce a new payment model for rural healthcare providers, develop and implement a strategy to improve rural health “by improving the physical and communications health care infrastructure available to rural Americans” (in cooperation with the Secretary of Agriculture and the Federal Communications Commission), and to submit a report to President Trump concerning policy initiatives related to rural health care and maternal health.

On the same date, the Centers for Medicare & Medicaid Services (CMS) released its CY 2021 Physician Fee Schedule proposed rule, scheduled to be published in the Federal Register on August 17, 2020, which would provide for the permanent expansion of Medicare-reimbursable telehealth services. Over the course of the PHE, CMS permitted 135 telemedicine services to be reimbursed by Medicare.

The proposed rule seeks to permanently authorize nine of these services to continue to be reimbursed by Medicare if provided through telehealth, including home visits for evaluation and management of established patients, group psychotherapy, and neurobehavioral status exams, among others.

Further, CMS proposes to extend Medicare reimbursement for certain other telehealth services in a special “category” of telehealth services, through the calendar year in which the PHE ends, including for emergency department visits for evaluation and management and nursing facilities discharge day management services. The proposed rule also requests public input on additional services to be included on the list of Medicare-reimbursable telehealth services. 

The CMS-proposed CY 2021 Physician Fee Schedule rule also offers an extension to the interim final policy adjusting the definition of direct supervision to permit a supervising physician to be located remotely and use real-time interactive audio-visual technology, to be effective until the later of December 31, 2021, or the end of the PHE. The existing definition of direct supervision could only be met where the supervising physician was physically present on-site during the performance of the procedure. This new definition would permit the reporting of services provided “incident to” the services of an eligible distant site physician or practitioner when the direct supervision requirements are met through a virtual presence of the billing provider.

Both the Executive Order and the proposed 2021 Physician Fee Schedule rule recognize the growing importance of access to telehealth, which has been propelled by the COVID-19 pandemic. According to CMS, prior to the PHE, 14,000 Medicare beneficiaries received a Medicare telehealth service per week, but, during the timeframe of mid-March 2020 through early July 2020, 10.1 million Medicare beneficiaries received a Medicare telehealth service.

These figures illustrate a remarkable increase in the utilization of telehealth services by Medicare beneficiaries.

Our Health Care Group helps clients develop and maintain the corporate infrastructure required to address the laws and regulations applicable to telemedicine and digital health.