With the end of the federal Public Health Emergency (“PHE”) for COVID-19 on May 11, 2023, some flexibilities that had expanded opportunities for FQHCs to be paid for telehealth services will expire on May 11, 2023, many others will expire on December 31, 2023 and 2024, and some will become permanent flexibilities. FQHCs that have relied on these flexibilities should be aware of the upcoming changes and begin preparing for the end of the COVID-19 PHE.
Below are some of the changes that will affect FQHCs as it pertains to Medicare reimbursements for telehealth services.
- Telehealth technology must be HIPAA compliant by August 9, 2023.
FQHCs that use audio or video communication technology to provide telehealth to patients must ensure that their audio and/or video products are HIPAA compliant. Previously, under the Notification of Enforcement Discretion, the Office of Civil Rights (“OCR”) stated it would not impose HIPAA penalties for noncompliance with the regulatory requirements in connection with the good faith provision of any telehealth services. This allowed health care providers to use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Zoom, Skype, and others, without the risk that OCR would seek to impose penalties for noncompliance with HIPAA Rules. This flexibility will expire on May 11, 2023, but OCR will provide a 90-calendar day transition period expiring on August 9, 2023, to come into compliance with the HIPAA Rules with respect to the provision of telehealth services.
- Medicare payments for some virtual communication services will no longer be available and virtual communication services may only be provided to established patients after May 11, 2023.
When the COVID-19 PHE ends, the payment for virtual communication services (G0071) will no longer include online digital evaluation and management services and these services may only be provided to established patients.
- Physicians will no longer be able “directly supervise” virtually after December 31, 2023.
Certain services covered by Medicare must be furnished under the “direct supervision” of a physician or practitioner. During the COVID-19 PHE, CMS modified the definition of direct supervision, which requires the supervising physician or practitioner to be “immediately available” to furnish assistance and direction during the service, to include “virtual presence” of the supervising clinician through the use of real-time audio and video technology. This flexibility will expire on December 31, 2023.
- FQHCs will no longer be reimbursed for non-behavioral/mental telehealth services after December 31, 2024.
FQHCs can provide and be paid for non-behavioral/mental telehealth services furnished to Medicare patients located at any site, including the patient’s home, until December 31, 2024. After December 31, 2024, there is an exception where the patient’s home can be an originating site when the patient is receiving substance use treatments. FQHC practitioners can also furnish non-behavioral/mental telehealth services from any distant site location, including their home, during the time that they are working for the FQHC, and can furnish any telehealth service that is included on the list of Medicare telehealth services under the Physician Fee Schedule until December 31, 2024. After December 31, 2024, FQHCs can no longer receive Medicare reimbursement for non-behavioral health telehealth services. However, behavioral and mental telehealth services originating geographic restrictions are permanently waived.
- FQHCs can continue serving as distant site providers for behavioral/mental telehealth services permanently.
Behavioral and mental health services may still be furnished through telehealth by clinical psychologists, clinical social workers, or other FQHC practitioners providing behavioral and mental health services to patients provided that:
- There is an in-person mental health service furnished within 6 months prior to the furnishing of the telecommunications service, and
- There is an in-person mental health service provided at least every 12 months while the beneficiary is receiving services furnished via telecommunications technology for diagnosis, evaluation, or treatment of mental health disorders.
In addition, providers will be able to provide behavioral/mental telehealth services delivered using audio-only communication platforms in situations where a patient cannot access or does not consent to an audio-visual visit.
Questions
If you have any questions regarding this Legal Alert, please contact the following from our office or the attorney with whom you normally consult.
Jennifer Scott
jscott@kmtg.com | 916-321-4349
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