Recent State And Federal Actions Signal That Telehealth Is Here To Stay

By Maureen Dunn McGlynn

Friday, February 26, 2021

Telehealth is defined as the use of electronic information and communication technologies to deliver health care to patients at a distance. Prior to the COVID-19 public health emergency (PHE), telehealth played only a small role in patient care. However, during the PHE, telehealth became especially important as a replacement for in-person visits with a healthcare provider. In the past year, there have been a number of temporary waivers and relaxations of statutory and regulatory requirements to expand the use of telehealth. The recent issuance of the 2021 Physician Fee Schedule (PFS) and Governor Cuomo’s plan to expand telehealth in New York are sure signs that the telehealth momentum is continuing and many of the temporary flexibilities will become permanent.

2021 Physician Fee Schedule Final Rule

The PFS final rule released by the Center for Medicare and Medicaid Services (CMS) included the addition of 60 new telehealth services that will be covered and reimbursed by Medicare. These services will remain on the Medicare telehealth services list through the end of the calendar year in which the PHE ends. Many are likely to become permanent.

In the PFS, CMS revised the definition of direct supervision to permit virtual presence of the supervising physician using real-time interactive audio and video technology. The current definition of direct supervision requires the physician to be physically present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. Under the new definition by the CMS, direct supervision can be met if the supervising physician is immediately available to engage via interactive audio and video. This change to the direct supervision definition means telehealth services may be furnished and billed when provided incident to a distant site physician’s service under the direct supervision of the billing professional provided through virtual presence.

Maureen Dunn McGlynn

The frequency limit for subsequent nursing facility visits was increased to permit one Medicare telehealth visit every 14 days. Medicare previously covered only one telehealth visit per month. In addition, the list of practitioners able to be reimbursed for using telehealth was expanded to include clinical social workers, clinical psychologists, physical and occupational therapists and speech language pathologists.

CMS clarified that if the provider and patient are in the same location and the provider uses telecommunications equipment to furnish the service to, for example, avoid the risk of COVID-19 exposure, the telehealth rules don’t apply. In those situations, the practitioner should bill for the service furnished as if it was furnished in person, and the service would not be subject to any of the telehealth requirements.

Proposal to Expand Access to Telehealth in 2021

On January 10, Governor Cuomo announced proposed regulatory and statutory changes to expand and improve access to telehealth. The Governor’s proposal would permanently adopt many of the temporary telehealth flexibilities that were available during the PHE.

Under the proposal, location requirements for Medicaid would be eliminated. Provider flexibilities, including interstate licensing reciprocity with states in the Northeast for specialties with historic access shortages, and use of certain unlicensed staff to deliver substance use disorder and mental health services would be permanently adopted.

Coverage for telehealth by commercial plans, as well as Medicaid, would be required at rates that incentivize rates. Insurers would also be required to offer their members an e-triage or virtual emergency department platform which would enable individuals to receive a symptoms assessment and a referral to a network of providers or a nearby emergency department when warranted.

The proposal contains changes to increase operability and access to electronic records among healthcare providers. For example, telehealth platforms would be required to participate in the Statewide Health Information Network for New York (SHIN-NY) or otherwise demonstrate interoperability with other providers in the insurer’s provider network and the SHINY-NY patient consent process would be streamlined.

In light of these growing opportunities to facilitate their patients’ access to care and generate revenue, it makes sense for healthcare providers to embrace telehealth now.

Maureen Dunn McGlynn is a partner at CCB Law, a boutique law firm focusing on providing counsel to physicians and healthcare professionals. She can be reached at 315-477-6276 or