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Proposed Rule for CMS to Implement COVID-19 Telehealth Waivers

Throughout the onset of the 2019 Novel Coronavirus (“COVID-19”) pandemic, the Centers for Medicare and Medicaid Services (“CMS”) issued a variety of temporary waivers that expanded reimbursement under Medicare, Medicaid, and CHIP for telehealth services. Allowing reimbursement for telehealth encourages patients to reduce the amount of in-person medical encounters, which in turn helps reduce the spread of COVID-19.

In response to the success of the temporary telehealth reimbursement waivers, CMS has released a proposed rule to update the physician fee schedule for the 2021 calendar year. The proposed rule would make these telehealth reimbursement waivers permanent. CMS is accepting comments from the public until 5 pm (EST) on October 5, 2020.

Because so many temporary waivers have been issued, CMS is seeking to streamline which telehealth services will be included in the proposed rule­—CMS has suggested a three-category system to achieve this goal. Currently, there are two categories by which CMS evaluates new services for reimbursement by Medicare. Category 1 services typically include things such as consultations and office visits. These services are already on the Medicare telehealth services list. Category 2 services are generally more complex than an office visit or other Category 1 services but could be delivered via telehealth when accompanied with a proper code.

The proposed rule, however, has introduced Category 3 services. This would include all of the services that were added to the telehealth services list temporarily during COVID-19. Some of those services include: group psychotherapy, neurobehavioral status exams, and prolonged office evaluation and management services, among other services. Category 3 services would remain reimbursable by Medicare either permanently or through the end of the year in which the COVID-19 public health emergency ends, depending on how the public responds during the notice and comment period for the proposed rule.

CMS is also seeking comments on whether initial visits by physicians or nonphysician practitioners for residents of skilled nursing facilities can be done via telehealth. Additionally, CMS proposes to allow subsequent visits once every three days as opposed to the current rule limitation of once every thirty days.

The proposed rule would also relax some direct supervision requirements. Where some types of treatment ordinarily require direct supervision by a physician, the proposed rule would not require real-time presence or observation. Instead of real-time observation, the proposed rule would simply require a supervising physician to be immediately available through audio and video technology. CMS seeks comments on the risks that this change would pose to patient safety issues.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments by CMS. Wachler & Associates will continue to stay up to date with all other COVID-19-related news.  If you or your healthcare entity has any questions pertaining to healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or

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