CMS Greenlights Certain Telebehavioral Health Services Beyond the Public Health Emergency and Provides Important Incentives for Further Investment

The COVID-19 International Pandemic compelled the Facilities for Medicare and Medicaid Services (“CMS”) to revamp its strategy to regulating telehealth companies and briefly embrace the modality as a sensible remedy choice. In the CY2022 Doctor Payment Schedule (“Final Rule”) revealed final week, CMS acknowledged the pervasive public satisfaction with telehealth throughout this grand experiment and greenlit expanded Medicare reimbursement for varied telehealth companies, together with sure telebehavioral well being companies. CMS acknowledged that offering protection for such companies till a definitive date (the finish of 2023) would permit suppliers to develop the medical assist required to pursue everlasting approval for such companies. Psychologists, psychological well being therapists, different behavioral well being suppliers, traders, and different stakeholders ought to pay attention to the extra telehealth alternatives created by the Closing Rule.

Key Adjustments 

In the Closing Rule, CMS introduced two key regulatory adjustments more likely to promote wider use of telehealth for behavioral well being companies.

Prolonged Timeframe for Reimbursement

First, CMS introduced that it’s extending the timeframe beneath which Medicare will reimburse for all briefly licensed telehealth companies (“Category 3 Telehealth Services”). In 2020, CMS exercised its waiver authority so as to add sure companies to the “CMS Telehealth List” solely for the length of the public well being emergency (“PHE”), thereby permitting Medicare to reimburse for such companies once they have been supplied by way of telehealth applied sciences throughout the PHE and by way of the calendar 12 months during which the PHE ended. In the Closing Rule, CMS simply introduced that any companies it beforehand licensed to be supplied by way of telehealth throughout the PHE on a brief (Class 3) foundation could proceed to be supplied by way of telehealth till the finish of the 2023 calendar 12 months and paid for by Medicare. 

Consequently, all suppliers—together with behavioral well being suppliers—have an prolonged, definitive timeframe during which they might proceed to offer Class 3 Telehealth Services by way of telehealth to Medicare beneficiaries. Additionally they have an prolonged alternative to proceed to develop medical arguments for the companies’ everlasting addition to the “CMS Telehealth List” on a Class 1 or Class 2 foundation whereas acquiring reimbursement for such companies.  This improvement presents an incredible alternative for behavioral well being suppliers and traders to proceed to spend money on telehealth know-how and to develop the medical proof to assist the addition of particular telehealth companies to the CMS Telehealth Checklist completely.

Relaxed Standards for Analysis, Analysis and Therapy 

Second, CMS considerably relaxed its reimbursement standards for telehealth companies furnished “for purposes of diagnosis, evaluation, or treatment of a mental health disorder.” Usually, Medicare solely pays for telehealth companies supplied in compliance with the telehealth circumstances of participation set forth in Part 1834(m) of the Social Safety Act (the “Act”) and its implementing laws at 42 C.F.R. §414.65 and 42 C.F.R. §410.78. In brief, traditionally Medicare pays for Medicare Half B companies supplied by way of telehealth which seem on the CMS Telehealth Checklist, are supplied by a certified practitioner who seems at a qualifying distant website and is treating a affected person who’s enrolled in Medicare Half B and presents at a qualifying originating website, assuming the events use an interactive telecommunications system allowing two-way, real-time interactive communications between the affected person and distant website practitioner in conformance with state and federal privateness legal guidelines.1 

The Closing Rule, nonetheless, authorizes Medicare fee for telehealth companies furnished “for purposes of diagnosis, evaluation or treatment of a mental health disorder” on a everlasting foundation (even after the PHE ends) beneath the following relaxed standards.2  

  • First, CMS completely allowed audio-only visits (i.e., the use of audio-only know-how for telehealth encounters for the prognosis, analysis or remedy of psychological well being circumstances, together with, on this occasion, for substance use problems) when the affected person’s house3 serves as the originating website for the encounter, the telehealth supplier has audio-visual technical capabilities for the encounter, but the affected person both will not be able to or doesn’t consent to a video encounter. Beforehand, CMS used waiver authority beneath the Act to briefly waive the requirement that telehealth companies be furnished by way of two-way, audio-visual communications techniques throughout the PHE for sure behavioral well being and counseling companies.4 Now, the Closing Rule makes this waiver everlasting for qualifying companies supplied to sufferers who’re of their house. For all companies aside from qualifying psychological well being companies, CMS is constant to require two-way, audio-visual communications know-how.5 For instance, for sufferers presenting from one other location for telehealth companies (like a doctor’s workplace, hospital, or one other facility), broadband applied sciences allowing audio-visual encounters are presumed accessible and are, due to this fact, required. 

  • Second, CMS is allowing the affected person’s house6 to function a qualifying originating website for telehealth encounters for the prognosis, analysis or remedy of a psychological well being dysfunction, supplied that the in-person go to requirement outlined beneath is met. CMS additionally waived the software of the different telehealth geographic restrictions for sufferers’ properties.7   

  • Third, CMS requires that such companies be preceded and adopted by a qualifying in-person go to by the identical practitioner at requisite intervals. Particularly, the practitioner furnishing the telehealth companies should: (i) have additionally furnished an merchandise or service in-person to the affected person (i.e., with out use of telehealth applied sciences) inside 6 months previous to the first time the supplier furnished telehealth companies to the affected person; and (ii) furnish in-person companies to such affected person each 12 months after a telehealth service.  CMS famous, nonetheless, that the “same practitioner” can embrace both (i) the doctor or practitioner who furnished the in-person, non-telehealth service; or (ii) a doctor or practitioner who’s in the identical specialty and subspecialty and in the identical group as the one performing the telehealth companies. Thus, the telehealth practitioner can depend on one other practitioner in his/her group to offer in-person companies.

Take Away

With these considerably relaxed standards, certified behavioral well being suppliers8 will be capable to proceed to offer teletherapy to sufferers of their properties and are licensed to make use of audio-only applied sciences for such classes past the PHE’s expiration. The Closing Rule’s adjustments ought to promote continued entry to companies for current affected person populations and additionally broaden the general inhabitants serviceable by behavioral well being suppliers in the future as sufferers search care from their house. Lastly, CMS’ tone in the Closing Rule suggests higher acceptance of the significance of telehealth in rendering behavioral well being care in a extra accessible style, which suppliers, traders and different stakeholders might seize upon to standup enhanced, everlasting telebehavioral well being service choices in the close to time period. 


1  See 42 C.F.R. §410.78(b).

2  Although Medicare could authorize reimbursement for telehealth companies assembly the circumstances in 42 C.F.R. 414.65 and 410.78, state legal guidelines and laws could impose extra standards for telehealth companies, which should be adhered to for lawful efficiency and Medicare reimbursement.

3  CMS defines “home” for such functions to incorporate the affected person’s house, different momentary lodging (e.g. resort, homeless shelter, and many others.), or someplace the affected person travels a brief distance away to acquire privateness or for different private causes.

4  Social Safety Act, Part 1135 Waiver (efficient March 6, 2020).

5  CMS famous that psychological well being companies are completely different than most different companies on the telehealth record in that they primarily contain verbal dialog between the affected person and supplier and visualization of the affected person is much less needed.

6  See Endnote iii (CMS defines “home” for such functions to incorporate the affected person’s house, different momentary lodging (e.g., resort, homeless shelter, and many others.), or someplace the affected person travels a brief distance away to acquire privateness or for different private causes.

7  That means, if the affected person is presenting from a affected person’s house for such companies, the house doesn’t must be situated in considered one of the qualifying areas supplied by 41 C.F.R. §410.78(b)(4): a well being skilled scarcity space that’s both outdoors of a Metropolitan Statistical Service Space (“MSA”) or inside a rural census tract of an MSA as decided by the Workplace of Rural Health Coverage of the Health Assets and Services Administration as of December 31 of the previous calendar 12 months, nor does the house must be situated in a county that’s not included in a MSA as outlined in Part 1886(d)(2)(D) of the Act as of December 31 of the previous calendar 12 months.   

8  The Closing Rule didn’t deal with broadening the definition of eligible practitioner past the customary Medicare telehealth requirement discovered at 42 C.F.R. §410.78(b)(2).  Medicare permits the following suppliers to offer telehealth companies beneath customary standards: physicians, doctor assistants, nurse practitioners, medical nurse specialists, medical psychologists, psychiatrists, medical social employees, registered dietitians and vitamin professionals, licensed registered nurse anesthetists. 

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