Flexibilities that were not extended include the ability for licensed clinicians to bill Medicare for services in states in which they are not licensed and coverage of PHP services outside of hospital or CMHC settings. Since all state-level PHEs have ended, licensure flexibilities have already ended in most instances. Please remember that states, facilities, and payers each may have different sets of rules regarding the delivery of telehealth.
Some PHE flexibilities were made permanent in Medicare, including: permanent allowance of audio-only telehealth for mental health and substance use disorder, the patient's home as an eligible originating site on a permanent basis, and permanent removal of geographic originating site restrictions. Some relevant federal policies have received temporary extensions on varying timelines, including Medicare telehealth services receiving the higher non-facility fee reimbursement in outpatient settings through the end of 2024; virtual supervision of residents delivering telehealth through the end of 2024; telemedicine controlled substances prescribing flexibilities extended through the end of 2024; and deferral of in-person requirements for Medicare mental health services through the end of 2024.
Policy changes in the federal 2023 year-end spending bill – CAA 2023 – included some important victories for the practice of psychiatry. Notably, the act delayed the implementation of Medicare’s in-person requirements through at least the end of 2024. As of now, some in-person requirements for Medicare mental health services will go back into effect in 2025 but stay tuned for updates. Please note that this flexibility only applies to billing Medicare for services delivered to Medicare members, not to other regulations that govern the delivery of care.
While in-person requirements for billing Medicare have been delayed through the end of 2024, other payers, including Medicaid and commercial payers, as well as your state legislature or state medical board, may be re-instituting in-person requirements to deliver care in your state. Further, if you are prescribing controlled substances, the waiver of the Ryan Haight Act’s requirement that patients be seen in person may expire. Therefore, while it is theoretically possible to maintain an all-virtual practice for the time being, it is advisable to ensure that you have the ability to see patients in-person, either for clinical or regulatory reasons.
Unfortunately, no. There are differing federal, state, and facility regulations governing licensure, reimbursement, and prescriptive authority.
On October 6, 2023, the Drug Enforcement Administration (DEA) temporarily extended flexibilities around telemedicine prescribing of controlled substances for the second time. This extension will allow time for the DEA to comprehensively review and incorporate the more than 38,000 comments received on the two companion proposed rules they released in March 2023, detailed in a post on our Telepsychiatry Blog. The emergency flexibilities will be extended in full until December 31, 2024. These flexibilities include that patients can be prescribed schedules II-V controlled substances without a prior in-person examination as clinically appropriate and within your normal scope of practice, and DEA registration in one state allowing prescription of controlled substances in any state.
New rules are expected from the DEA in the fall of 2024 which may include a "telemedicine special registration" as a regulatory pathway.
Per the DEA’s current interpretation of the Ryan Haight Act, you can continue to prescribe controlled substances to a patient that you have seen in person, at least once, even pre-pandemic, within your clinical judgment. The Ryan Haight Act does not set an “expiration date” or frequency requirements associated with prescribing controlled substances. You can continue to prescribe controlled substances via telemedicine without a prior in-person visit through December 31, 2024, and then some in-person rules will apply based on DEA’s finalized rules. As a reminder, state or facility rules or clinical considerations can impose frequency requirements or best practices (e.g., that you have to see patients in person annually). Current rulemaking processes will change some of the details.
DEA's current extension of telemedicine prescribing flexibilities only allows the prescription of schedule II-V controlled medications via video visit. Audio-only (telephone) encounters are only allowable for the prescription of schedule III-V narcotic controlled medications approved by the Food and Drug Administration (FDA) for maintenance and withdrawal management treatment of opioid use disorder (e.g., buprenorphine).
Correct. Once an in-person exam has occurred, the Ryan Haight Act does not mandate frequency or recurrence. Decision-making about appropriate timeframes for in-person care is the responsibility of the prescribing clinician. Take a look at APA’s Ryan Haight Act overview for additional information.
The Ryan Haight Act is based on prescribing practitioners, not on practices – so even if a colleague in your practice takes over the patient’s care, the Ryan Haight Act's requirement for the new practitioner to see the patient theoretically applies. The Ryan Haight Act describes the special circumstance of a “covering practitioner” - “a practitioner who conducts a medical evaluation [by telemedicine] at the request of a practitioner who … has conducted at least one (1) in-person medical evaluation of the patient or an evaluation of the patient through the practice of telemedicine within the previous 24 months; and is temporarily unavailable.” The “covering practitioner” allowance in the Ryan Haight Act does not replace the requirement that the prescribing clinician has conducted an in-person exam. It does allow for a colleague who has never seen the patient in person themselves to prescribe on your behalf through a telehealth exam on a short-term basis, as clinically appropriate and within the law.
With the end of federal and state public health emergencies, all states currently require that you are licensed or registered in the state in which you are treating the patient (meaning the state where the patient is physically located when they receive care from you). As we mentioned earlier, some states, like Florida, have mechanisms to register for a telemedicine license in the state, which is different from a license to have a physical practice in the state. You can look at your specific state’s policies in this Telemedicine Policies by State resource from the Federation of State Medical Boards (.pdf), but assume that you will need to be licensed where your patients are. This could mean that your patients travel into a nearby state where you are licensed, or that you help them find a psychiatrist that is licensed in their state.
Providing telehealth services to a patient that is located in a country in which you don't have a medical license would be practicing without a license. Instead, we recommend that you work with the patient to provide continuity of care while transitioning the patient to a local clinician. If the patient is in the US and you are not, you are not permitted to bill Medicare for that service.
In an update to previous policy, CMS has extended virtual supervision of residents when the resident is delivering telehealth through at least the end of 2024. The ongoing status of this flexibility will be pending additional rulemaking. This flexibility will no longer apply when the resident is delivering in-person care, so if a resident and a patient are in-person then the supervising physician must be as well. Residents may only be virtually supervised when delivering telehealth.
The exception to this would be if the resident and patient are both in rural areas. In this instance, the resident can be virtually supervised while delivering in-person care by a supervising physician in an urban location.
Residents can continue providing telehealth services to Medicare beneficiaries under both virtual and direct supervision.
CMS’s rules governing residency supervision only apply directly to care billed to Medicare. However, other payers may follow CMS’s example here.
There are two main areas of exception: first, that residents can be virtually supervised when both the patient and the resident are in a rural (non-metropolitan statistical area) location; second, what is known as the “primary care exception.” CMS reports that “Certain psychiatric GME Programs may qualify as a primary care exception in special situations (like when the program provides chronically mentally ill patients comprehensive care),” and you should check with your facility leadership to find out if you may qualify for this exception.
Coverage and Billing
While there was a limited in-person visit requirement for Medicare mental health services in the Centers for Medicare and Medicaid Services (CMS) 2023 Physician Fee Schedule, CAA 2023 removed in person requirements to bill Medicare through the end of 2024. There are no in-person requirements in Medicare until at least 2025. Audio-only is a permanently allowable telehealth modality in Medicare, including after the PHE flexibilities end.
E/M codes can be used for audio-visual telehealth encounters. Telephone codes (e.g., 99443) will still be available for use to report audio-only encounters until the end of 2024. Places of service should be appended to claim lines to indicate care settings: Beginning in January 2024, POS 02, indicating a telehealth service delivered somewhere other than the patient’s home, will be reimbursed at the facility rate, and POS 10, indicating a telehealth service delivered in the patient’s home or other community setting, will be reimbursed at the higher non-facility rate. We are confirming the telehealth billing codes and timelines with CMS. Through the end of 2023, all telehealth services should continue to be billed with the place of service (POS) that would have been reported had the services been in-person (e.g., POS 11 for an office visit) along with modifier 95.
Commercial and Medicaid payers will vary widely in their coverage policies. While most states have some state laws governing private payer telehealth reimbursement policies, and all states reimburse for live video telehealth in fee-for-service, there are wide variations in modalities, services, and providers covered. You can connect with your APA District Branch, state medical board, and other trusted resources to assess coverage for your patients in your state.
State and federal laws governing licensure, prescriptive authority, and other requirements like patient data management (e.g., HIPAA, 42 CFR Part 2) likely still apply to you even if you’re not billing insurance. Rules in the CMS Physician Fee Schedule don’t apply to you if you’re not taking Medicare or when you are providing care to non-Medicare patients. However, a good rule of thumb is to use CMS rules as a baseline for your practice to help you stay in compliance across settings and patient populations.
In the CAA 2023, Congress decoupled Medicaid continuous eligibility from the PHE, allowing states to begin Medicaid disenrollment processes (also called “unwinding”) on April 1, 2023. Every state approached this differently, and some states have put in motion policy to extend Medicaid continuous enrollment. Each state has different policies on Medicaid eligibility, enrollment, and disenrollment. You can take a look at each state’s disenrollment timelines on the Kaiser Family Foundation’s site (.pdf).