End of public health emergency, Mental health telehealth, end of the PHE

Reimbursement Repercussions for April 2023, End of Public Health Emergency

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While the official end of the public health emergency (PHE) was extended to April 2023 for many federal government programs, two federal actions will further extend the deadline for federal Medicare reimbursement until at least December 31, 2024. A notable requirement for mental health telehealth providers to see their clients and patients in person was announced, despite telebehavioral health being permanently approved for medicare reimbursement in 2022. Other repercussions of the end of the PHE include the return of HIPAA and licensure enforcement.

Meanwhile, active legislation to mitigate the negative repercussions of the end of the PHE includes the following:

Permanent Telehealth Reimbursement Changes

  • Medicare reimbursement for eligible telehealth services including telebehavioral health when the patient is located in a geographically rural area AND in an eligible originating site
  • Medicare reimbursement for mental health telehealth services (including audio-only services in some cases)
  • For behavioral health, an in-person visit is required within the first six months of an initial telehealth visit and every 12 months thereafter, with certain exceptions, starting January 1, 2025.

Changes In Effect Until 12/31/2024

Medicare beneficiaries can receive telehealth care from any location, including their homes, with exceptions.

  • In addition to medical and mental health telehealth providers including psychologists, social workers, counselors and marriage and family therapists, Medicare reimbursement will be available for occupational therapists, physical therapists, speech-language pathologists, and audiologists.
  • Reimbursement of FQHCs and RHCs will continue as distant site telehealth providers for services unrelated to mental health.

Eliminated

Prescribing controlled substances via telemedicine will be forbidden without an in-person examination, except in specific circumstances, if further actions are not taken by the Drug Enforcement Agency (DEA). As a result of many groups lobbying for modification of the Ryan Haight Act, a proposed rule by the Substance Abuse and Mental Health Services Administration is in process. It would permanently allow telemedicine providers to prescribe buprenorphine for opioid use disorder treatment in an opioid treatment program without an in-person visit. Comments are due on this proposed rule by Feb. 14, 2023. 

Most of the state waivers related to licensure and private payers have expired, except for some Medicaid telehealth flexibilities. Visit CCHP’s COVID policy tracker for more information on state-based policies. 

For more information about the Omnibus Government Spending Package, see CCHP’s summary and full text of the bill, and for behavioral policies under the 2023 Physician Fee Schedule, see Telehealth.org’s summary for behavioral professionals.

Other Notable Telehealth 2023 Changes Caused by the End of the PHE

HIPAA Compliance

During the COVID public health emergency, HHS Office for Civil Rights (OCR) applied enforcement discretion to telehealth providers, allowing them to utilize any non-public facing remote communication product, even if they don’t fully comply with the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  OCR has recently clarified in a FAQ document that the enforcement discretion will remain in effect until the Secretary of HHS declares that the public health emergency no longer exists, or upon the expiration date of the declared PHE.  OCR will issue a notice to the public when it is no longer exercising its enforcement discretion.

Reimbursement is only one of many areas to be impacted by the end of the PHE. HIPAA mandates will be fully restored, requiring fully HIPAA-compliant practices, including associated documentation and policy statements starting the official end of the PHE, currently projected for April 2023. The initial enforcement discretion exercised by the Office for Civil Rights (OCR), will revert back to stringent HIPAA requirements, especially for telehealth providers. They must use a HIPAA-secure and BAA-covered video platform, patient communication tools, email, and text messaging. This mandate is daunting, given that a recent survey suggests that the majority of telehealth companies claiming HIPAA compliance fail to deliver promises when scrutinized. See Some Telehealth Platforms Are Tracking Sensitive Patient Data: Are They Violating HIPAA? 

Licensing

Another area that will revert to traditional regulations at the end of the public health emergency as set for April 2023, is practicing over state lines. Although never completely allowed without approved waivers, registrations, or full licensure, many practitioners have been practicing over state lines since the start of the COVID-related PHE. These practitioners need to either terminate these therapy relationships or walk the extra mile to obtain proper recognition from the licensing board of all states where their clients or patients are located at the time of the contact. Enforcement of local licensure laws is to be fully expected, particularly after the official end of the PHE. Given that professionals are expected to know the limits of their licensure as a condition of getting a license, the area of jurisidictional law is not likely to be one where clinicians can reasonably argue that they were uninformed or misinformed.

Every licensed clinician will most likely be expected to work within the confines of their existing licensure at the end of the public health emergency. Those who are unsure of how to continue serving clients who have moved or are otherwise located out-of-state can easily find 1-hour professional development training to identify quick answers to their questions.

Conclusion

As the world edges toward the end of the public health emergency, many professionals accepting Medicare will continue to enjoy working through telehealth to reach the people they serve. As has been the norm in the past, many private payors can be expected to follow Medicare’s lead over time.

Meanwhile, all professionals need to bring themselves into immediate HIPAA and licensure compliance. Readers are encouraged to click the above links to key resource documents for details, and check back to the Telehealth.org blog to keep informed in this rapidly changing landscape.

Optimizing Telehealth Billing: Current Telehealth CPT Codes & Telehealth Reimbursement Strategies

Today’s telehealth CPT codes and other telehealth billing issues are in rapid flux. Information gathered from online searches or colleagues can be outdated and incorrect — and lead to frustrating claim denials.

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