Over the last year, we have seen major changes happen to federal and state telemedicine and digital health laws, including expansions to telehealth coverage and reimbursement and exemptions of controlled substance prescribing rules. While most of the changes we have seen over the last year have been to promote the use of digital health technology to deliver medical care, there is one change that may harm – and at the very least – confuse telemedicine efforts.
The Consolidated Appropriations Act of 2021, which encompassed a wide variety of matters, included a sentence in Section 123 geared toward mental health services furnished via telemedicine, “Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder unless such physician or practitioner furnishes an item or service in person, without the use of telehealth…” within the 6-month period prior to the first time the telehealth services are furnished.
The restriction, interestingly, does not apply for an otherwise “eligible telehealth individual with a substance use disorder diagnosis for purposes of treatment of such disorder or co-occurring mental health disorder.”
While this is not the first time restrictions have been placed on Medicare reimbursement for telehealth services, it may be the only instance of a federal statute that expressly mandates an in-person examination for Medicare coverage of a telemedicine service. Other restrictions include certain CPT service codes that are limited to established patients only, certain durable medical equipment items that have a “face to face encounter” requirement, and the longstanding geographic and originating site restrictions.
This restriction is a bit of a shock, as it is directly at odds with the direction that telehealth policy has been moving over the last few years. It also is a change to Medicare’s historical telehealth approach, which is generally to defer to state laws on professional practice requirements and clinical standards of care. Most state laws presently allow for doctor-patient relationships to be created via telemedicine without an in-person exam, as long as the standard of care is met. In addition, the vast majority of states have telehealth coverage laws which require commercial health plans to cover telehealth services.
What is Next?
It’s hard to predict what will come next, but this wrinkle has thrown some patients and practitioners for a loop. It looked like, after the COVID-19 pandemic, telemedicine was going to be the way of the future. However, the potential implications of a mandatory in-person examination requirement are significant and may result in decreased access to care.