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With the countdown to the end of the year, industry stakeholders have been closely monitoring whether current telehealth flexibilities will remain. One of the lasting impacts of the COVID-19 pandemic has been the dramatic expansion of health care services offered via telehealth, along with increased flexibility around reimbursement for providers offering their services using telehealth technologies, where appropriate. While the COVID-19 Public Health Emergency expired in 2023, Congress passed a two-year extension for many key flexibilities that allowed greater reimbursement of telehealth services by Medicare in the Consolidated Appropriations Act of 2023. Among the most impactful of these flexibilities are[i]:

• Originating Site Requirements—Waiver of the geographic restrictions on the “originating site” for non-behavioral health telehealth services, such as allowing reimbursement for telehealth services delivered in a patient’s home;
• Practitioners—Expansion of the types of providers that can be reimbursed for telehealth services;
• In-person Evaluation—Waiver of the requirement to conduct an in-person visit within six months of an initial telehealth encounter for behavioral health patients; and
• Audio only—Expanded reimbursement for audio-only telehealth services.

Congress had proposed an additional two-year extension of these flexibilities in the proposed Further Continuing Appropriations and Disaster Relief Supplemental Appropriations Act of 2025[ii], however the apparent breakdown of Congressional negotiations around this bill has created increased uncertainty around whether Congress will be able to act to extend these flexibilities before they expire on December 31, 2024[iii]. The end of these flexibilities may result in a dramatic reduction in the scope of Medicare Fee-For-Service reimbursement for telehealth that providers and patients alike have grown accustomed to, including:

• Reverting to the pre-pandemic restriction that Medicare Fee-For-Service may only reimburse telehealth services if they are delivered by a provider at an approved “originating site,” such as a hospital or clinic. This includes removal of Medicare Fee-For-Service reimbursement for almost all telehealth services delivered to a patient in their home.
• Limitation of the types of telehealth services eligible for reimbursement from Medicare Fee-For-Service.
• Significant reduction in reimbursement for audio-only telehealth services.
• Return to limits on the types of providers that are eligible for reimbursement for providing telehealth services, with specialties such as occupational therapy, physical therapy, and speech-language pathology becoming ineligible (unless those services are billed incident to an “eligible provider”).
• A return of the requirement that behavioral-health providers must conduct an in-person visit with telehealth patients within 6 months of an initial telehealth encounter, with subsequent in-person visits following every 12 months.

It is important to note that the expiration of the flexibilities may not immediately affect all telehealth business lines.  If the waivers expire, commercial payors, including Medicare Advantage plans, as well as state Medicaid programs could continue to offer reimbursement for telehealth services beyond what is covered by Medicare fee-for-service. While those payors may ultimately modify their reimbursement policies in response to the flexibilities expiring, those changes would likely take effect later in 2025 as plans are renewed, rather than on January 1. Providers may also continue to offer non-covered telehealth services to Medicare Fee-For-Service beneficiaries on a cash-pay basis, though doing so would need to be done in compliance with Medicare notice and eligibility requirements as well as state law.

Industry advocates such as the American Telemedicine Association are currently lobbying to renew these telehealth provisions before the end of the year[iv]. A more recently proposed CR released on December 19 would have extended Medicare telehealth flexibilities through March 31, 2025[v]. Any CR must be passed by both houses of Congress and signed into law by the President.

If the flexibilities are not extended before the end of the year, there is also the possibility that they could be retroactively extended once either the new congress is sworn in on January 3, or when the new administration takes office on January 20. Additionally, as we noted in our previous article on the telehealth flexibilities[vi], other key provisions have already been extended through agency action, including the DEA’s extension of flexibilities for prescribing controlled substances.  Our team will continue to follow the progress of legislation over the next two weeks to track its impact on patients and providers. If you have questions, please contact us.