Medicare Telehealth Services Remain Up In the Air Amid PHE Expiration

Among the number of benefits patients and healthcare consumers benefitted from through the Public Health Emergency since 2020, Medicare telehealth services for some are looking foggy past the PHE's expected May 11 expiration.

Under the Consolidated Appropriations Act of 2023, some Medicare telehealth flexibilities will extend until December 31, 2024, though significant questions remain for the future of telehealth, especially in the Medicare program.

Despite the fact that several important flexibilities have been extended through other vehicles, there are a few critical telehealth provisions that will sunset with the PHE unless Congress or federal agencies act, according to Morgan Lewis partner Jake Harper.

In particular, the waiver of the Ryan Haight Act will end with the PHE. The end of this waiver will potentially cause chaos for telemental health providers, especially those that have started or expanded after the PHE was announced, Harper said.

For those healthcare providers that have never had an in-person visit with their patient before, they will be restricted from prescribing any controlled substance (Schedule II-V) via a telehealth encounter. While the end of the PHE may prompt DEA to enact a temporary or permanent fix, without any changes, patients receiving telehealth care will face access issues on May 12, 2023.

Harper said federal policymakers will focus on gathering data on telehealth usage and spending and considering various permanent policies for Medicare in telehealth over the course of the next 22 months.

Among the hot topics that will be debated in whatever final legislation is enacted are whether new or established patients can enjoy Medicare telehealth benefits, whether audio-only services can continue to be reimbursed by Medicare, and whether a periodic in-person visit requirement will be enacted, the latter of which would significantly impact the ability of telehealth companies to expand beyond a regional basis for Medicare patients.

For those who still have telehealth opportunities under Medicare, but have not enrolled, recipients will need to complete additional paperwork to maintain their benefits. Recipients are encouraged to do so because state Medicaid programs can begin disenrolling patients before the end of the PHE – starting on April 1, 2023 – and must devise a process to completely update their Medicaid enrollment records by April 2024. This update will likely result in disenrollment of both those who no longer qualify for Medicaid and some folks that still do.

Aside patients facing disenrollement, the federal incentive payment will gradually reduce from April 2023 to December 2023, at which points states will not enjoy any bump in federal financial participation as a result of this arrangement.

• Any additional info?

There are several additional enforcement and regulatory policies that are likely to sunset with the PHE, including the Office for Civil Rights policy on enforcement discretion for using unsecured audio/video modalities for telehealth visits, the Office of Inspector General’s policy on enforcement discretion for waiving telehealth cost sharing amounts, and various enrollment flexibilities provided by CMS.