The primary telehealth flexibilities extended beyond the end of the PHE involve Medicare coverage. Flexibilities that were not extended include telehealth exams for prescription of controlled substances, DEA registration in one state allowing prescription of controlled substances in any state, use of non-HIPAA-compliant messaging software, and the ability for licensed clinicians to bill Medicare for services in states in which they are not licensed. Since all state-level PHEs have ended, licensure flexibilities have already ended in most instances. Take a look at this resource from APA for an overview of telehealth policies during and after the PHE: Comparison of Telehealth Provisions During the Public Health Emergency, & After the Public Health Emergency (.pdf).
Policy changes in the federal 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 will 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.
The DEA released draft rules on March 1, 2023 that provide some pathways for continuity of care for patients with prescriptions for controlled substances after the end of the PHE, including a potential “off-ramp” for patients that were established via telehealth during the PHE. Those rules are not yet final and may change.
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. Any patient you have not seen in person, including those you established via telehealth during the pandemic, will need to be seen in person by you or another DEA-licensed clinician to be prescribed controlled substances. 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 may change some of the details.
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 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.
No. A video visit is required in order to prescribe controlled substances via telehealth during the PHE. Per DEA PHE rules, “DEA-registered practitioners … may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided … The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system.”
With the end of most 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 (but are licensed in the US), your ability to provide care may vary based on the patient’s insurance policies – so find out how they are planning to pay and investigate accordingly. It’s advisable to check with your malpractice carrier before delivering care across national borders. Providing care in a country that you aren’t in may also make it more difficult for you to provide necessary emergency services or referrals.
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.
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.
Modifier 95 in Medicare denotes live video telehealth. 93 and FQ both denote audio-only telehealth services. FQ is Medicare’s existing modifier, and 93 is what many commercial payers have been using, so Medicare is allowing providers to bill either 93 or FQ or both for audio-only services. RHCs, FQHCs, and OTPs have to bill modifier 93 and may also bill FQ. We recommend that you bill both as it is allowable and covers your bases. You can start billing these modifiers starting after the 151-day PHE flexibilities end – so on the 152nd day after the PHE ends. We have confirmed with CMS that this is the case even given Medicare flexibilities in the CAA 2023.