Recent legislative changes indicate that Congress is committed to continuing to allow patients to access telehealth services after the COVID-19 public health emergency (PHE) ends, but it is gathering more information before making such changes permanent. Comments from the U.S. Department of Health & Human Services (“HHS”) Secretary Xavier Becerra and the HHS Office of Inspector General (“OIG”) indicate that HHS is committed to expanding telehealth beyond the end of the PHE and that the OIG recognizes the long-term benefits of access to these services.

In the Federal omnibus spending bill signed in March 2022, Congress extended current Medicare reimbursement waivers applicable to telehealth services for five months beyond the end of the PHE. This gives providers additional time to take advantage of expanded telehealth flexibilities beyond the PHE end date, which is currently extended to July 15, 2022. Some of the waivers applicable to telehealth services that are extended five months beyond the PHE include:

  • The originating site requirements are relaxed so that telehealth services may be delivered anywhere the patient is located, including patient homes.
  • Medicare will continue to cover certain audio-only telehealth services.
  • An expanded list of provider types may continue to offer telehealth services, including physical therapists, occupational therapists, speech-language pathologists and audiologists.
  • Congress delayed the in-person requirement applicable to mental health services, including an in-person visit within every 6 months of the first telehealth service and subsequent in-person visits every 12 months.

Further, Congress has directed the Medicare Payment Advisory Commission (“MedPAC”) to study the expansion of telehealth during the COVID-19 PHE and the increase in spending and report back to Congress with recommendations by June 15, 2023. Congress also directed the OIG to report on program integrity risks and make recommendations to prevent fraud, waste and abuse. The interest in program integrity signals that there will be more scrutiny on meeting the documentation requirements for telehealth, but it also indicates interest in expanding these telehealth flexibilities permanently depending on the results of the study.

Finally, the OIG has established a resource page on its website (see here) dedicated to telehealth and the OIG’s evaluation of such services. On the resource page, the OIG uses positive language to describe the expansion of telehealth, potentially indicating an increased likelihood for permanent expansion. Bipartisan bills (i.e. the Telehealth Extension and Evaluation Act) that make Medicare telehealth flexibilities permanent have been introduced and are under consideration.