CMS May Eliminate Most Emergency Codes for COVID-19 Telehealth Services

While Congress debates extending telehealth coverage and President Trump tries to compel it through an Executive Order, the Centers for Medicare & Medicaid Services is poised to eliminate most of the temporary codes created during the coronavirus pandemic to expand connected health.

According to the proposed 2021 Physician Fee Schedule released last week, CMS is planning to keep nine codes added during the COVID-19 crisis and add 13 new codes. But 74 codes are slated to end when the public health emergency is over.

“Although CMS temporarily allows the services addressed by these codes to be delivered via telehealth, CMS found no likelihood of clinical benefit after the PHE ends,” Nathaniel Lacktman, a partner in the Foley & Lardner law firm and chair of the firm’s telemedicine and digital health industry team, and Rachel Goodman, senior counsel for the firm and a member of that team, wrote in a recent analysis on the firm’s website. “Even with the development of additional clinical evidence, CMS believes these services are unlikely to satisfy Category 2 criteria to justify including on a permanent basis.”

The 13 new codes proposed for inclusion in the Physician Fee Schedule are grouped in a new category, Category 3 (the Category 1 codes are slated to remain in place, and the Category 2 codes are scheduled for elimination). According to Lacktman and Goodman, these codes will remain in place through the end of 2021, and they represent an effort by CMS to gradually expand telehealth coverage as it looks for evidence to support them.

“The reason for this unique approach is because CMS believes these codes have promise to be added on a permanent basis, but require additional data, real-world use experience, and feedback from stakeholders before CMS can make a final determination,” they wrote. “CMS will not remove these codes concurrent with the PHE expiration because it wants to give the public an extra opportunity to gather data and submit requests to CMS, asking CMS to add some of these codes to the Medicare telehealth services list on a permanent basis.”

“In short, Category 3 services are those likely to provide clinical benefit when furnished via telehealth, but for which there is not yet sufficient clinical evidence to evaluate making them permanent under existing Category 1 or Category 2 criteria,” Lacktman and Goodman added. “For a Category 3 service to become permanent, stakeholders will need to submit to CMS: 1) a description of relevant clinical studies that demonstrate the service, when furnished via telehealth, improves the diagnosis or treatment of an illness or injury, or improves the functioning of a malformed body part (including dates and findings of those studies); and 2) a list and copies of published peer reviewed articles relevant to the service when furnished via telehealth.”

In an earlier analysis of the proposed Physician Fee Schedule, Lacktman and colleagues Thomas Ferrante, a senior counsel with the firm and Emily Wein, an attorney with the firm said the proposed telehealth changes “are bold and designed to more deliberately expand the use of telehealth technologies among Medicare beneficiaries.”

How those changes play out with the President and Congress remain to be seen.

Trump’s Executive Order calls on the Health and Human Services Secretary to, among other things, “propose a regulation” to extend some or all of CMS’ emergency telehealth coverage measures “as appropriate, during the duration” of the PHE. That order has a 60-day time limit.

The order drew praise from telehealth advocates, but no one could say whether the final result will be any different than what CMS has proposed. They also noted that the CMS proposal could be altered by the comments it receives (the deadline for public comment is October 5).

On the other hand, Congress does have the authority to make more sweeping changes on telehealth coverage. But faced with a fractious environment caused by an election year and an unprecedented flurry of bills addressing telehealth, it’s difficult to gauge what will and what won’t pass muster, and whether changes are included in the next stimulus bill or grouped in separate legislation.

For now, Lacktman and his colleagues are urging people to comment on the CMS proposal.

“The proposed changes for 2021 demonstrate CMS’ commitment to expanding meaningful patient access to care via telemedicine and digital health technology, both during the PHE and beyond,” he and Goodman concluded in their latest blog. “CMS is developing a post-pandemic strategic plan for telehealth, and industry advocates, entrepreneurs, and healthcare providers can use this moment to share their recommendations, ideas, and suggestions during the public comment period. This feedback - both policy ideas and by submitting clinical studies and concrete data - will be vital to CMS’ continued ability to improve and innovate under the Medicare program.”