by Louis J. Wilson, MD, FACG
Chair, Legislative & Public Policy Council
Wichita Falls Gastroenterology Associates
Wichita Falls, TX

Congress passed the Consolidated Appropriations Act, 2023 (2023 CAA) (Public Law 117-328) during the “lame-duck” session last year and it was signed into law on December 29, 2022. The legislation is otherwise known as an “omnibus” package. As you know, the 2023 CAA provided insufficient relief we needed regarding cuts to Medicare reimbursement. However, ACG advocacy helped successfully extend key telehealth flexibilities instituted during the federal government’s Public Health Emergency (PHE) declaration through December 31, 2024. These changes effectively untie telehealth flexibilities from the continued existence of the PHE. Yet, how does a federal government spending bill impact healthcare policy?

Omnibus: “to, for, by, with, or from everything”
Translated literally, the word omnibus in Latin means “to, for, by, with, or from everything.” When Congress cannot pass spending or appropriations bills under its “regular order,” the next step in the process is lumping everything together into one omnibus spending package that extends beyond just appropriations. In the case of 2023 CAA, it also included telehealth policies impacting ACG members.

How did we get here? What specific telehealth issues impact ACG members?
The Consolidated Appropriations Act, 2022 (2022 CAA) enacted in March 2022, had previously extended many of these policies for 151 days (approximately five months) after the end of the PHE. The 2023 CAA now decouples many telehealth policy waivers from the PHE and provides extended coverage through December 31, 2024. However, there are other telehealth policies that remain tied to the PHE and will expire absent additional legislative and/or regulatory action.

Then in January, the Biden Administration announced its intent to end the PHE on May 11, 2023.

What does that mean for ACG members and telehealth services, given the language in the omnibus and end of the PHE? Here are some examples, based on ACG members’ questions:

Originating Site and Geographic Location: Medicare requires that a beneficiary receive telehealth services at a designated healthcare facility or rural site (originating site) in certain geographic locations. This originating site requirement is currently waived, and patients can receive telehealth services anywhere, including their home. The 2023 CAA extends the waiver of the originating site and geographic location requirements through December 31, 2024.

Payment for Audio-Only and Other Telehealth Services:
Medicare did not cover certain telehealth services provided via telephone (audio-only) prior to the pandemic. During the PHE, however, CMS covers audio-only evaluation and management (E/M) telephone codes for new and established Medicare patients and provides enhanced payment for these telephone E/M services (CPT codes 99441–99443) to match payments for similar office/outpatient visits (CPT Codes 99212–99214). CMS added these telephone E/M codes to the list of Medicare telehealth services in March 2020, waiving requirements that these telehealth E/M codes be provided using video as well. The 2023 CAA permits the provision of telehealth services through audio-only telecommunications through December 31, 2024. Please note that while audio only services are covered through December 2024, and are currently reimbursed at rates equivalent to in-person visits, this does not mean that audio-only services will continue to be reimbursed the same as in-person visits through December 2024. The 2023 CAA did not instruct CMS to continue providing enhanced payment for these services. Prior to the PHE payment rates for telephone CPT codes 99441- 99443 ranged from $14-$41. In 2023, the payment rates range from $56-$128. This is the equivalent to payments for established patients’ office/outpatient visits.

For other telehealth services covered prior to the pandemic and/or impacted by the PHE, coverage and payment are subject to change pursuant to future CMS guidance (e.g., audio-visual services currently being reimbursed at the in-person office visit payment rate).

Licensure: During the PHE, CMS waived Medicare and Medicaid requirements that physicians and non-physician practitioners be licensed in the state where they are providing services when the following four conditions are met:

• The provider is enrolled as such in the Medicare program.
• The provider possesses a valid license to practice in the state that relates to the provider’s Medicare enrollment.
• The provider furnishes services—whether in person or via telehealth—in a state in which the PHE is occurring in order to contribute to relief efforts in a professional capacity.
• The provider is not affirmatively excluded from practice in the state or in any other state that is part of the 1135 emergency area.

Practitioners must continue to comply with state licensure requirements—i.e., Medicare waived requirements for licensure for Medicare coverage and payment purposes, but Medicare does not have the authority to override state licensure requirements that may be applicable. Because the underlying licensure requirement for Medicare coverage and payment is set forth in statute, and the authority to waive the requirement is similarly statutorily limited to periods of emergency, CMS would not be permitted to waive these licensing requirements more broadly without congressional action.

During the PHE, CMS allowed licensed physicians and other practitioners to bill Medicare for services provided outside of their state of enrollment. CMS has determined that, when the PHE ends, CMS regulations will continue to allow for a total deferral to state law. This CMS waiver did not have the effect of waiving state or local licensure requirements, or any requirement specified by the state or a local government. When the PHE ends, current regulations will continue to allow for a deferral to state law.

Remote Patient Monitoring: CMS has permitted clinicians to bill for remote physiologic monitoring (RPM) services furnished to both new and established patients, and to patients with both acute and chronic conditions. Prior to the PHE, an initiating visit was required before RPM services could be billed. When the PHE ends, clinicians must once again have an established relationship with the patient prior to providing RPM services. However, CMS will continue to allow RPM services to be furnished to patients with both acute and chronic conditions.

Current CPT coding guidance states that the RPM services described by CPT codes 99453 and 99454 cannot be reported when fewer than 16 days of data are collected. During the PHE, CMS allows clinicians to bill CPT codes 99453 and 99454 when as few as two days of data were collected if the patient was diagnosed with COVID-19 (or was suspected of having COVID- 19), and as long as all other billing requirements of the codes were met. When the PHE ends, clinicians must only bill for these services when at least 16 days of data have been collected.

Final Comments
ACG will continue to educate members on telehealth services and urge Congress to permanently waive restrictions to care. The failure of Congress to address serious flaws in the Medicare Physician Fee Schedule also remains a top priority for our advocacy. We call on Congress to make serious efforts to address this urgent issue. The Physician Fee Schedule cuts, combined with Medicare sequestration cuts as well as the rising costs to operate our practices due to inflation are accelerating costly and disruptive consolidation trends and threatening access to cost-effective healthcare for Medicare beneficiaries. We will continue to work diligently to make this clear to Congress.