Given the increased use of telehealth during the Public Health Emergency (“PHE”), the Centers for Medicare and Medicaid Services (CMS) passed a final rule modifying the rules around when Medicare will reimburse for mental health visits. A previous blog post analyzed Federal laws and rules governing telehealth visits, including the general Medicare rules applicable during the PHE. This post analyzes the changes to the Medicare telehealth reimbursement rules for mental health treatment that begin the day after the PHE ends. Note, there are different rules when treatment includes for substance abuse disorders. If you have questions about telemedicine rules or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, email@example.com. You may also learn more about our law firm by visiting www.hamillittle.com.
Essential Requirements Under Medicare’s New Rule
Effective January 1, 2022, new Medicare telehealth rules went into effect to allow reimbursement for “diagnosis, evaluation, and/or treatment of a mental health disorder for services furnished on or after the first day after the end of the PHE,” which was extended to April 16, 2022. But Medicare will only reimburse when the patient is at his/her home if the following conditions are met:
i. The physician or practitioner has furnished an item or service in-person, without the use of telehealth, for which Medicare payment was made (or would have been made if the patient were entitled to, or enrolled for, Medicare benefits at the time the item or service is furnished) within 6 months prior to the initial telehealth service;
ii. The physician or practitioner has furnished an item or service in-person, without the use of telehealth, at least once within 12 months of each subsequent telehealth service described in the paragraph, unless, for a particular 12-month period, the physician or practitioner and patient agree that the risks and burdens associated with an in-person service outweigh the benefits associated with furnishing the in-person item or service, and the practitioner documents the reason(s) for this decision in the patient’s medical record.
iii. The requirements of paragraphs [A and B above] may be met by another physician or practitioner of the same specialty and subspecialty in the same group as the physician or practitioner who furnishes the telehealth service, if the physician or practitioner who furnishes the telehealth service . . . is not available.
Essentially, there must be:
- an in-person exam within 6-months prior to the first telehealth appointment and
- yearly in-person visits.
If these requirements are met, along with other general claim requirements, the telehealth visit will be covered even though the patient’s home is not a qualified originating site under the statute and thus not otherwise eligible for reimbursement. Note, there are different rules if the patient is at a hospital, Federally Qualified Health Center, etc.
Can the prior and periodic exam requirements be waived?
The final rule includes examples of when the 12-month, periodic in-person exam requirement can be waived, including “if the patient and practitioner agree that the benefits of an in-person non-telehealth service within 12 months of the mental health telehealth service are outweighed by risks and burdens associated with an in-person service, and the basis for that decision is documented in the patient’s medical record, the in-person visit requirement will not apply for that particular 12-month period.” There is also an exception when the mental health treatment includes substance abuse treatment.
There is currently no exception to the requirement of an in-person exam 6 months prior to the initial telemedicine appointment.
If you have questions about the new Medicare telehealth rules or telemedicine rules in general or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.