Telehealth Changes for 2023

There are many telehealth and telemedicine changes coming for 2023. Some of these changes are legal. Some are administrative. Many of the changes are technical. We provide a summary of these changes in what has become a very popular way of providing medical services.

There are different federal rules and state rules that govern when and how physicians and other health care providers can participate in the delivery of health care services through the use of telemedicine. Our lawyers are ready to discuss your telemedicine compliance requirements.

HR 4040 – Advancing Telehealth Beyond COVID–19 Act of 2021

The US Congress passed a law in 2022 that provides for certain healthcare extensions of specific Medicare telehealth flexibilities in response to the COVID-19 pandemic. The law provides that these flexibilities will continue to apply until the end of calendar year 2024, if the COVID-19 emergency ends before that date. The law allows:

• “Beneficiaries to continue to receive telehealth services at any site, regardless of type or location (e.g., the beneficiary’s home).
• Occupational therapists, physical therapists, speech-language pathologists, and audiologists to continue to furnish telehealth services.
• Federally qualified health centers and rural health clinics to continue to serve as the distant site (i.e., the location of the health care practitioner).
• Evaluation and management and behavioral health services to continue to be provided via audio-only technology.
• Hospice physicians and nurse practitioners to continue to complete certain requirements relating to patient recertifications via telehealth.”

The laws postpones the requirement for certain in-person evaluations for mental health telehealth services until January 1, 2025, or the first day after the end of the emergency period, whichever is later.

Anticipated telehealth innovations for 2023

Three likely shifts in telehealth innovations according to Med City News are:

• Home hospitals. The pandemic helped to initiate the Acute Hospital Care at Home Program. In November 2020, the Centers for Medicare & Medicaid Services started the Acute Hospital Care at Home which aims to “provide hospitals expanded flexibility to care for patients in their homes.” Telehealth services will enable this model of health care.
• Telehealth ICUs. Many ICUs are in high demand. That was especially true during the height of the pandemic. Patients in ICUs require a high degree of care from physicians who specialize in treating critically ill patients. Unfortunately, many ICUs don’t have enough intensive care doctors on staff which can mean patients in ICUs fail to obtain the care the patients so desperately need. Telehealth ICUs are a way to help patients in understaffed ICUs get help from intensive care doctors from a distance.
• Enterprise integration. New telehealth technology will help ensure that patients get the same quality of care whether the patients are at home, in an ICU, or elsewhere. Medical providers, doctors and nurses for starters, are healthcare professionals. Medical professionals are not IT professionals. Telehealth can help integrate the different type of care patients need so doctors can practice medicine and nurses can help patients.

Telehealth services after the current Public Health Emergency Ends

Part of the reason that advancements in the telehealth industry are expected for 2023 was the passage on March 15, 2022, of the Consolidated Appropriations Act which extends Medicare telehealth reimbursement flexibility for 151 days following the end of the Covid-19 public health emergency (PHE). One the PHE ends though, many CMS telehealth services will expire unless a specific extension applies. After the expiration date, the approved telehealth services will match those in existence before the pandemic started.

On July 7, 2022, the Centers for Medicare and Medicaid Services (CMS) released its proposed 2023 Medicare Physician Fee Schedule (PFS) rule. If the rule becomes law, there will be three permanent telehealth codes for prolonged E/M services.  The rule will discontinue reimbursement of E/M services through the telephone, discontinue the use of virtual direct supervision, add new codes to the Category 3 telehealth list, and provide for other changes. The anticipates that certain public health emergency rules and waivers may expire soon.

Permanent telehealth codes

The three new codes for telehealth services are:

• GXXX1 – for extended hospital inpatient services, observation care evaluations, and management services subject to certain conditions.
• GXXX2 – for extended nursing facility evaluation and management service – subject to certain conditions.
• GXXX3 – for extended home or residence evaluation and management service(s) – subject to certain conditions.

Certain stakeholder codes were rejected by CMS based on their failure to meet the following categories:

• Category 1 services. These should be similar to office visits, medical consults, and psychiatry services on the current CMS telehealth services lists.
• Category 2 services. These services require that there be some proof of clinical benefit – and all the parts of the service must be capable for being done remotely.

Discontinue reimbursement of E/M services through the telephone

Previously, based on Public Health Emergency (PHE) waivers, CMS allowed for reimbursement of telephone (just the audio) E/M services – which many patients in rural settings and patients without the proper broadband access for video/audio services used. CMS denied adding these services to its Medicare Telehealth Services List – with some exceptions for mental health services. Instead, CMS will require two-way video and audio telecommunications services. The audio alone category was rejected because of the Social Security Act’s requirements that telehealth should be as close to a face-to-face interview as possible.

Discontinue the use of virtual direct supervision

Generally, Medicare Part B requires that specific services such as diagnostic tests must be administered while being supervised by a physician. Supervision requires that the doctor be physically in the same office suite and immediately ready (in-person, not virtual) to provide medical help and direction through the remainder of the procedure.

The public health emergency waivers permitted the supervising health professional to be virtual using interactive video/audio technology – so that the supervision health professional didn’t have to be in the same office as the person administering the health service to the patient. CMS is now proposing that in-office supervision be required when the PHE ends (the calendar year when the PHE ends).

New codes added, temporarily, to the category 3 telehealth schedule

According to the American Occupational Therapy Association, additional codes will be added during the duration of the public health emergency. For example, some of the codes that pertain to occupational therapy services delivered through telehealth include:

• 92526. “Treatment of swallowing dysfunction and/or oral function for feeding.”
• 92610. “Evaluation of oral and pharyngeal swallowing function.”
• 96125. “Standardized cognitive performance testing (e.g., Ross Information Processing Assessment) per hour of a qualified health care professional’s time, both face-to-face time administering tests to the patient and time interpreting these test results and preparing the report.”
• 97129. “Therapeutic interventions that focus on cognitive function (e.g., attention, memory, reasoning, executive function, problem solving, and/or pragmatic functioning) and compensatory strategies to manage the performance of an activity (e.g., managing time or schedules; initiating, organizing, and sequencing tasks), direct (one-on-one) patient contact; initial 15 minutes.”

Other changes

Other CMS changes when the PHE ends concern using telehealth services for mental health and the specific time that the temporary telehealth codes will expire to be consistent with the Consolidated Appropriations Act of 2022. Different codes may expire at different times.

There are many changes coming in 2023 regarding the use of telehealth services. Many of these changes involve how telehealth services and CMS reimbursement will change when the COVID-19 pandemic ends or based on specific dates. Other changes are technological. These changes, which provide new opportunities for health care companies and practitioners do require that the developers and practitioners consult with experienced healthcare lawyers who understand the anti-referral laws, privacy laws, and other laws and regulation that govern telehealth and telemedicine.

Medical practices that use telehealth services for their patients should contact Cohen Healthcare Law Group, PC to discuss the changing federal and state legal compliance issues. Our experienced healthcare attorneys advise physicians, nurses, and other healthcare providers about healthcare compliance laws and regulations.