On July 13, 2021, the Center for Medicare and Medicaid Services (CMS) released their proposed CY 2022 Physician Fee Schedule (PFS). The PFS is historically where CMS will make administrative changes to telehealth policy in the Medicare program. As the pandemic begins to stabilize and restrictions begin to lift, there has been great concern as to what will happen with the temporary telehealth changes on the federal level. The CY 2022 proposed PFS is one step towards addressing those questions.

Telehealth Services & Communications Technology Based Services (CTBS)

The PFS is traditionally where CMS will add additional telehealth services to the eligible telehealth services list for Medicare. No new services were added in the CY 2022 proposal. Instead, CMS made permanent adoption of G2252, virtual check-in service of 11-20 minutes, which was introduced in last year’s PFS and noted that the temporary services they had placed in Category 3, also in last year’s PFS, will remain active until the end of CY 2023 and not the end of the year that the public health emergency (PHE) is declared over.

Mental Health & Audio-Only

The most significant proposals involve the provision of mental health services via telehealth and utilization of audio-only to deliver those services. In December 2020, Congress passed the Consolidated Appropriations Act (CAA) which included a change to federal telehealth policy. That change allowed for the provision of mental health services in the home and without the geographic limitation, if the patient had an in-person visit with the telehealth provider within six months prior to the telehealth service taking place. CMS is implementing that policy and outlined details in the PFS noting that the in-person visit would need to have taken place before each telehealth encounter. Therefore, if you had an in-person visit with your telehealth provider a month before you received services via telehealth, that visit would qualify. But if you wanted a follow-up visit eight months later via telehealth, you would need to have another in-person visit with that provider.

Additionally, CMS stated that because of the likelihood that mental health services provided via technology will continue post-pandemic, the concern about cutting off people who receive such services, and the efficacy of utilizing audio-only to provide mental health services, the agency is revisiting its stance on how it defines “interactive telecommunications system.” In federal statute, telehealth is provided through a “telecommunications system.” There is no federal definition for “telecommunications system.” In regulations, CMS added the word “interactive” before “telecommunications system.” CCHP has always maintained and provided comments to CMS over the years that given the lack of a federal statutory definition for “telecommunication system,” it is within CMS’ power to change the definition to be more expansive. In comments to last year’s PFS and at the end of the year when the public was solicited for comments regarding the temporary waivers, CCHP reiterated this position. In their response to comments in last year’s PFS, CMS noted that they “continue to believe that our longstanding regulatory definition of “telecommunications system” reflected the intent of statute and that the term should continue to be defined as including two way, real-time, audio/video communications technology.” In the proposed CY 2022 PFS, CMS has reassessed their position. Based on data from COVID-19 and other factors, CMS is proposing to allow the use of audio-only to provide mental health services in the Medicare program if:

It is for an established patient;
The originating site is the patient’s home;
The provider has the technical capability to use live video but,
The patient cannot or does not want to use live video and
There must be an in-person visit within six months of the telehealth service.
Federally Qualified Health Centers (FQHCs)/Rural Health Clinics (RHCs)

CCHP has maintained that additional flexibilities may be given to FQHCs and RHCs without Congressional action by redefining what constitutes as a “visit” for these entities. CMS is proposing to expand the definition of a “mental health visit” for FQHCs and RHCs by including that definition mental health services provided through “interactive, real-time telecommunications technology” including audio-only. For the latter, the patient must not be capable or not consent to the use of live video. Additionally, the rate paid to FQHCs and RHCs will be their prospective payment system (PPS) rate or all-inclusive rate (AIR).

It should be noted that FQHCs and RHCs will still be not be considered distant providers providing telehealth services. This is a definition change to what constitutes a “mental health visit” for these entities. Therefore, that would also mean that the statutory limitations on the use of telehealth, such as geographic limits, would presumably not apply if CMS is not viewing this as “telehealth” but simply as a visit for these entities.

Other items were proposed in the CY 2022 PFS. To read about those proposals and a more in-depth look at the aforementioned ones, download CCHP’s fact sheet (below). Public comments on the PFS are due September 13, 2021.

CCHP’s fact sheet - https://www.cchpca.org/2021/07/Proposed-CY-2022-Physician-Fee-Schedulefinal.pdf