For the long-time readers of the Center for Connected Health Policy (CCHP) newsletter, you may have noticed that we did not release a 2024 reflection newsletter among the most recent editions. The reason for this is because like many of you, CCHP was waiting to see what would happen with the temporary federal telehealth waivers applicable to Medicare. On December 21, 2024, with President Biden signing HR 10545, we got our answer, and it was likely not what many were hoping to see. HR 10545 was the continuing resolution (CR) that would keep the federal government funded through March 31, 2025. Included in that bill was an extension of the major statutory telehealth waivers, but only until March 31, 2025, just an additional three months. The telehealth waivers extended until that date include:
- Waiving geographic and specific site requirements
- Maintaining the list of eligible providers to use telehealth to provide services
- Continuing to allow Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to provide services via telehealth
- Delaying the requirement for in-person visits for mental health services taking place without the geographic requirement to be met and taking place in an eligible site such as the home
- Continuing to allow services to be provided via audio-only
- Continue to allow telehealth to be used to conduct the face-to-face encounter recertification for beneficiaries eligible for hospice care
- Extending the acute hospital at home program
With such a short extension provided by Congress, the telehealth community is essentially left in much the same position it was in during the last quarter of 2024: wondering if there will be another extension on the horizon, or if the telehealth waivers will truly expire this time.
A SIGNIFICANT EXCEPTION
While everyone was waiting to see if the telehealth waivers would be extended at the end of 2024, the final policies contained in the 2025 Physician Fee Schedule (PFS) were released, but not scheduled to go into effect until January 1, 2025. Today, those 2025 PFS policies are now in full effect, however, they do not completely align with the extension Congress implemented for the statutory telehealth waivers.
FQHCs & RHCs
Within HR 10545, the expanded list of providers eligible to provide services via telehealth and be reimbursed by Medicare will remain in effect for an additional three months. This list includes, among others, FQHCs and RHCs. Because of the recent extension, the providers on the expanded list will continue to receive reimbursement from Medicare if they use telehealth to deliver a service at least through March 31, 2025. However, this March 31 end date conflicts with the 2025 PFS, in which the Centers for Medicare and Medicaid Services (CMS) noted that they will allow FQHCs and RHCs to continue to use telehealth to provide non-mental health services and be reimbursed through 2025. CMS based the reasoning for taking such action on the telehealth statute applying to services furnished by a physician/practitioner and not to an entity like an FQHC or RHC, allowing CMS to make this change specific to FQHCs/RHCs without a change in statute. (Additionally, in the 2025 PFS, CMS delayed the in-person visit requirements for mental health services furnished via communication technology by RHCs and FQHCs to beneficiaries in their homes until January 1, 2026. )
Therefore, we now have two similar policies with different end dates:
- The policies passed by Congress that allow FQHCs and RHCs to continue to provide services via telehealth in Medicare and get reimbursed, while also waiving prior in-person visit requirements, both of which will end on March 31, 2025, and
- The CMS PFS-based policies specific to FQHCs/RHCs that have an end date of December 31, 2025.
So which policy is followed? In this scenario, the policies overlap and the difference is only significant if no further action is taken by Congress and the March 31 expiration date comes to pass. If that happens, then we know there are still nine additional months that FQHCs and RHCs can continue to use telehealth to provide services. (As well as not having to meet any in-person visit requirements related to mental health services, as mentioned above).
AUDIO-ONLY
Another case where policies may not necessarily align involves audio-only. In HR 10545, the use of audio-only to provide services was also extended through March 31, 2025. However, in the 2025 PFS, CMS noted that the American Medical Association (AMA) CPT Panel eliminated audio-only codes 99441, 99442 and 99443, and stated that these codes would return to bundled status when the telehealth flexibilities were set to expire on December 31, 2024. There was some question on whether the three month extension would impact the decision to delete 99441-99443, due to this note in the Federal Register 89FR 97710:
The CPT Editorial Panel also deleted three codes (99441-99443) for reporting telephone E/M services. We note that CPT codes 99441, 99442, and 99443, each are assigned provisional status on the Medicare telehealth services list and would return to bundled status when the telehealth flexibilities expire on December 31, 2024. For further background, we referred readers to our discussions in previous rulemaking, where CMS explains the rationale for this policy (88 FR 78871-78878).
As the flexibilities did not expire on December 31, 2024, it was not clear if 99441-99443 would still be deleted, though they currently show that status in the 2025 Medicare Telehealth Services list. An inquiry was sent to CMS asking for clarification on the status of those codes in particular, as well as general audio-only billing guidance. CMS recently responded stating that, while they cannot provide specific guidelines, the language that was submitted for clarification (provided below) is correct:
- 99441-99443 are deleted
- For audio-only, codes 99202-99215 can be used with the following modifiers to signify that the service was provided via audio-only:
- Modifier 93 for non-FQHC/RHC distant site providers
- Modifier FQ when the service is provided by an FQHC/RHC
Additionally, while HR 10545 extended the use of audio-only through March 31, 2025, the 2025 PFS permanently changed the regulatory definition of an interactive telecommunications system to include audio-only for delivery of any telehealth service. However, in order to be able to use audio-only certain conditions must be met. Those conditions are:
- The patient is in their home during the audio-only interaction and
- The distant site provider must be technically capable of using live video, but the patient isn’t capable or does not wish to use live video.
As CCHP noted in its 2025 PFS Fact Sheet, other permanent Medicare telehealth policies may continue to limit the expansiveness of this new definition. As CMS states in the final PFS rule, under the permanent statutory policies, and without an additional Congressional extension, even with the permanent allowance of audio-only under the PFS, once federal waivers expire “the patient’s home is a permissible originating site only for services for the diagnosis, evaluation, or treatment of mental health or substance use disorder, and for the monthly ESRD-related clinical assessments described in section 1881(b)(3) (B) of the Act.” However, with the current three-month extension, this more limited policy will not go into effect at least during the period of the extension.
TIMING ISSUES & WHAT COMES NEXT
Readers are likely now wondering why the policies that Congress and CMS adopted are not better aligned with each other. The answer is: it’s all about timing.
When CMS prepares the PFS, they are typically starting work on policies almost immediately after the previous year’s iteration is finalized. Therefore, the work on the 2025 PFS likely started near the end of 2023, followed by the proposals being published in July 2024. Subsequently, there is a 60-day public comment period on the proposed PFS, with a final version then published in November 2024, leading to the final policies going into effect January 1 of the following year (unless otherwise stated). This is a timeline CMS has to adhere to fairly faithfully each year in order to have policies ready to go into effect January 1 of the following year, while also meeting requirements placed on them by law, such as providing a comment period. Therefore, when CMS was preparing the PFS 2025 proposals, the only information they had at that time about the statutory Medicare telehealth waivers was that they would end on December 31, 2024. Consequently, CMS had to shape their proposals with that in mind because they did not know if there would be an extension, or if the expiration date would come to pass. In fact, the additional extension was not finalized until the very end of the year, on December 21, 2024.
The foregoing helps to explain why the CMS policies and the Congressional extensions are not perfectly aligned with each other at this time. Hopefully CMS will soon provide some clarity/direction on the policies that may not be in full alignment with each other and where there remain discrepancies between CMS 2025 PFS actions and HR 10545.
CCHP will provide updates on future Congressional actions and federal rules applicable to telehealth as they become available. For other resources related to this topic, watch our most recent CCHP webinar, which was completed in partnership with the National Consortium of Telehealth Resource Centers, discussing these issues and the current federal telehealth policy landscape (Note: the webinar took place before we received clarification from CMS regarding the audio-only issue). You can also download a copy of the CCHP fact sheet on the 2025 PFS from our website, as well as a previous CCHP Telehealth Tuesday newsletter edition discussing what might happen if the telehealth waivers expire (dated 12/10/24). |
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