The Centers for Medicare & Medicaid Services (CMS) recently published a Proposed Rule, primarily intended to modify certain Medicare payment policies.  The Proposed Rule contains several provisions that address the growing use of telehealth. CMS noted that it had received many suggestions regarding the expansion of access to telehealth as well as appropriate pay for the same, in response to its call for comments in the CY 2018 Medicare physician fee schedule (PFS) proposed rule.

A stated goal for CY 2019 is to “increase access for Medicare beneficiaries to physicians’ services that are routinely furnished via communication technology by clearly recognizing a discrete set of services that are defined by and inherently involve the use of communication technology.” In light of this, CMS made several proposals for modernizing physician payment for communication technology-based services in the following areas:

  • Brief communication technology-based service, e.g., virtual check-in
  • Remote evaluation of pre-recorded patient information
  • Interprofessional internet consultation
  • Medicare telehealth services under Section 1834(m) of the Act
    • Conditions to be met for payment of telehealth services under the PFS
    • Additional CMS-proposed telehealth services based on requests that were submitted to add services to the list of telehealth services for CY 2019
  • Expanding the use of telehealth under the bipartisan budget act of 2018
    • Expanding access to home dialysis therapy
    • Expanding the use of telehealth for individuals with stroke
  • Technical revision modifying §414.65 regarding the list of telehealth services
  • CMS is seeking comments on creating a bundled episode of care for management and counseling treatment for substance use disorders

Separately, states continue to be active in their attempts to modernize their laws and regulations to appropriately address the expanded use of telehealth. By way of example, Texas revised its insurance code § 1455.004 to further clarify that a “health benefit plan may not exclude from coverage a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service or a telehealth service solely because the covered health care service or procedure is not provided through an in-person consultation.” However, at the same time, the code was revised to state that notwithstanding the foregoing language, a “health benefit plan is not required to provide coverage for a telemedicine medical service or a telehealth service provided by only synchronous or asynchronous audio interaction, including: (1) an audio-only telephone consultation; (2) a text-only e-mail message; or (3) a facsimile transmission.” This amendment is one example of the rapidly evolving nature of this area of law and regulations.

The deadline for submitting comments to the Proposed Rule is 5 p.m. on September 10, 2018.