This post is co-authored with Paul Palma, legal intern at Robinson+Cole. Paul is not admitted to practice law.

On July 14, 2025, the Centers for Medicare and Medicaid Services (CMS) issued the calendar year (CY) 2026 physician fee schedule (PFS) proposed rule, which in pertinent part proposes several changes affecting the delivery and reimbursement of telehealth services under the Medicare program. Specifically, the proposed rule includes changes to the Medicare Telehealth Services List review process, telehealth service frequency limitations, and changes to the definition of direct supervision. Comments on the proposed rule are due to CMS by September 12, 2025, and can be submitted electronically (through regulations.gov) or by mail.

The following is an overview of the key telehealth-related provisions in the proposed rule:

• The Social Security Act requires the Secretary of Health and Human Services to establish a process for adding or deleting Medicare telehealth services on an annual basis, and CMS annually publishes its Medicare Telehealth Services list which sets forth the HCPCS codes for telehealth services eligible for Medicare reimbursement. CMS currently implements a 5-step review process when determining whether to add or delete telehealth services from the list. Under the proposed rule, CMS seeks to simplify this annual review process by removing current steps 4^[1] and 5.^[2] CMS explains in the proposed rule that it has determined those steps are no longer necessary because CMS believes that “the complex professional judgment of the physician or practitioner is sufficient to ensure a service can be safely furnished via telehealth and that the service will be clinically beneficial to the beneficiary” and, accordingly, this change “will better allow practitioners to determine if telehealth is appropriate for that specific Medicare beneficiary and that specific clinical scenario.”   CMS explains further that the change is consistent with its “intent to simplify and reduce the administrative burden” associated with annual submission and review of Medicare telehealth services.
• CMS also proposes to no longer designate services on the list as either “permanent” or “provisional” and instead to consider all services on the list to be permanent (but still subject to removal in the future where warranted in accordance with its process). This change aligns with the proposal to remove steps 4 and 5 from the current review process, because the “provisional” designation had been used for services that met steps 1 through 3 but not 4 and 5 during prior years, and would no longer be applicable.
• The proposed rule also evaluates a number of services to be added to the Medicare telehealth services list for CY 2026, including: (1) multiple-family group psychotherapy; (2) group behavioral counseling for obesity; (3) infectious disease; (4) Auditory Osseointegrated Sound Processor; (5) dialysis related to review of medical records, history and revising treatment plans; (6) Home INR monitoring; (7) and Telemedicine E/M Services (CPT codes 98000-98015)
  • Of the services reviewed, CMS proposes to add the following for CY 2026: Multiple-Family Group Psychotherapy (CPT Code 90849); Group Behavioral Counseling for Obesity (CPT code G0437); Infectious Disease Add-On (CPT Code G0545); and Auditory Osseointegrated Sound Processor (CPT Codes 92622 and 92623).
  • Also, CMS proposes to not add the following services: Dialysis (CPT codes 90935, 90937, 90945, and 90947), Home INR Monitoring (HCPCS Code G0248), and Telemedicine E/M Services (CPT codes 98000-98015).
• The proposed rule again clarifies that digital mental health treatment (DMHT), remote physiologic monitoring (RPM), and remote therapeutic monitoring (RTM) services do not meet the definition of telehealth services under the Social Security Act and Medicare regulations because they “are inherently non-face-to-face” and accordingly are not subject to Medicare’s telehealth rules and requirements.
• Previously, when adding certain services to the Medicare telehealth services list, CMS has imposed limitations on how frequently those services could be furnished via telehealth. Under the proposed rule, CMS would remove frequency limitations for critical care consultations and subsequent inpatient and nursing facility visits, which would codify the approach taken by CMS during the COVID-19 pandemic and subsequently continued following the end of the public health emergency.
• Medicare Part B currently requires certain services to be furnished under a minimum level of supervision (divided into general, direct, and personal supervision). Most incident-to services, pulmonary and cardiac rehabilitation services, many diagnostic tests, and some hospital outpatient services currently require direct supervision. During the COVID-19 pandemic, CMS revised the definition of “direct supervision” to allow for it to include supervision through a virtual presence utilizing audio/video real-time communications technologies, and to provide that it requires a supervising practitioner to be “immediately available” but not to require the practitioner’s in-person physical presence. The proposed rule now seeks to expand upon the approach taken during the COVID-19 pandemic and incremental changes made in subsequent years to allow direct supervision to be furnished virtually for certain services. The proposed rule seeks comment on “whether to adopt a definition of direct supervision that allows ‘immediate availability’ of the supervising practitioner using audio/video real-time communications technology (excluding audio-only), for all services described under [42 C.F.R.] § 410.26, except for services that have a 000, 010, or 090 global surgery indicator.”  In addition, under the proposed rule, CMS seeks to permanently revise the definition of direct supervision to state that the “presence of the physician (or other practitioner) required for direct supervision may include virtual presence through audio/video real-time communications technology (excluding audio-only) for services without a 010 or 090 global surgery indicator.” CMS stressed in the proposed rule that, “As always, the physician or practitioner should use his or her complex professional judgment to determine the appropriate supervision modality on a case-by-case basis.”
• Additionally, CMS notes that the proposed rule would no longer allow teaching physicians to have a virtual presence when billing for services furnished by residents in a teaching setting. Teaching physicians would once again be required to maintain a physical presence during resident-furnished services to be eligible for reimbursement.

The proposed rule from CMS signals a continued shift towards permanently integrating certain telehealth flexibilities into routine care delivery, and to codifying certain telehealth delivery practices and policies that were implemented in response to the COVID-19 pandemic and have been determined not to pose significant program risks. Providers and health care organizations should review the proposed rule closely and consider submitting comments to help shape the final rule. Of note, the viability of continued flexibility for the delivery of telehealth services will depend in part upon necessary legislative proposals expected in the upcoming weeks and months. We will continue to monitor this and other CMS proposals and will provide future updates as they become available.

[1] Step 4 requires CMS to “consider whether the service elements of the requested service map to the service elements of services on the list that has a permanent status described in previous final rulemaking.”

[2] Step 5 requires CMS to “consider whether there is evidence of clinical benefit analogous to the clinical benefit of the in-person service when the patient, who is located at a telehealth originating site, receives a service furnished by a physician or practitioner located at a distant site using an interactive telecommunications system.”