CMS has finalized its 2022 Physician Fee Schedule. Within the regulations that must comply for federal laws there is a step backwards for Medicare and telehealth access even though the patient’s home remains an originating site, which is keeping the regulation change during the pandemic. Telehealth is defined in § 410.78 Telehealth services and includes audio-only services. But look at the third sentence!
(3) Interactive telecommunications system means, except as otherwise provided in this paragraph, multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner. For services furnished for purposes of diagnosis, evaluation, or treatment of a mental health disorder to a patient in their home, interactive telecommunications may include two-way, real-time audio only communication technology if the distant site physician or practitioner is technically capable to use an interactive telecommunications system as defined in the previous sentence, but the patient is not capable of, or does not consent to, the use of video technology. A modifier designated by CMS must be appended to the claim for services described in this paragraph to verify that these conditions have been met. (Highlight and italics mine)
The modifier has not been published as of this writing. Now the interesting parts. First, let’s consider the initial visit and follow up visits.
(xiv) The home of a beneficiary for the purposes of 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 as defined in our regulation at § 400.200 except as otherwise provided in this paragraph. Payment will not be made for a telehealth service furnished under this paragraph unless the following conditions are met:
(A) 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;
(B) 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 this 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. (Highlight and italics mine)
So, it looks to me like the client must be seen in person initially before telehealth can begin and then seen in person every 12 month afterwards unless the provider and patient/client agree telehealth visit(s) outweigh the benefits of in person visits. Documentation s I crucial on this one and will need to be specific to withstand an audit.
The next interesting part involves what provider can provide the in person visit versus the telehealth visit.
(C) The requirements of paragraphs (b)(3)(xiv)(A) and (B) 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 described under this paragraph is not available.
Another practitioner can do the in-person visits! Let’s think about this for a minute beyond just the individual practitioner or group of practitioners. Since another practitioner can provide the in person visit, it allows the practitioner providing telehealth who may be in a different county or different state to utilize a practitioner who is acceptable to the patient/client and in a proximity of manageable distance to the patient/client to provide the in person visit initially or every 12 months if the risks and benefits exceptions cannot be documented to withstand an audit. I would postulate that solo and small group practitioners at a distance from the patient/client could contract with practitioner(s) more local to the patient/client and form a virtual group. Virtual groups of solo and small group practitioners are allowed and encouraged for Quality Payment Program (QPP) so why not use it as an option for telehealth!
Support for Small, Underserved, and Rural Practices – QPP (cms.gov)
The last section is no surprise at this point.
(D) Services furnished on or after the first day after the end of the PHE as defined in our regulation at § 400.200 for the purposes of diagnosis, evaluation, and/or treatment of a mental health disorder. Payment will not be made for a telehealth service furnished under this paragraph unless 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 and within 6 months of any subsequent telehealth service.