On February 13, 2023, the Centers for Medicare and Medicaid Services (CMS) published the revised List of Telehealth Services for Calendar Year (CY) 2023 (List). The List includes the services that are payable under the Medicare Physician Fee Schedule when furnished via telehealth.
In its update, CMS clarified that all codes on the List are available through the end of CY 2023. Pursuant to the 2023 Consolidated Appropriations Act (“CAA”), certain telehealth flexibilities (including with respect to provider and patient location) will be extended through December 31, 2024. Therefore, codes on the List will be billable when furnished via telehealth, regardless for instance of the geographic location of the provider and the patient through the end of this year. CMS anticipates further revisions to the List through the CY 2024 Physician Fee Schedule final and proposed rules; providers should carefully review these rules when published to determine the scope of telehealth coverage that will be available after 2023.
As discussed in more detail below, the provision and billing of services on the List are directly impacted by the status of telehealth waivers and flexibilities promulgated during the PHE, and which providers should consider in determining current coverage status for their services.
Originating Site – Continuing Flexibility through 2024
During the PHE, the definition of “originating site” is expanded to mean any site in the United States, including an individual’s home. Prior to the PHE, “originating site” only included the patient’s home in certain limited circumstances. Originating site geographic restrictions are permanently waived for behavioral/mental telehealth services, and the CAA extends this flexibility through December 31, 2024 for non-behavioral/mental telehealth services.
Audio-Only Telehealth Services and Telephone E/M Codes – Continuing Flexibility through 2023 and Beyond
The use of audio-only platforms for certain E/M services and behavioral health counseling and educational services is permitted during the PHE. Prior to the PHE, CMS generally required these services to be furnished with audio-video technology. The CAA extends this flexibility through December 31, 2024.
Also during the PHE, telephone evaluation and management (E/M) services (CPT codes 99441-99443) are on the List on a temporary basis and Medicare payment is equivalent to the payment for office/outpatient visits with established patients. Furthermore, practitioners are allowed to bill E/M services furnished using audio-only technology, which otherwise would have been reported as an in-person or telehealth visit, using those codes. Because these codes are included on the revised List, we understand that they will remain billable (and payable at equivalent rates) through December 31, 2023.
Practitioner Types – Continuing Flexibility through 2024
The types of practitioners who may bill for Medicare telehealth services from a distant site are expanded during the PHE to include qualified occupational therapists, qualified physical therapists, qualified speech-language pathologists, and qualified audiologists. Prior to the PHE, “practitioner” only included physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse-midwifes, clinical social workers, clinical psychologists, and registered dietitians or nutrition professionals. The CAA extends this flexibility through December 31, 2024.
RPM Codes – Reestablished Limitations with Some Continued Flexibility
During the PHE, clinicians are permitted to bill for RPM services furnished to both new and established patients. Prior to the PHE, an initiating visit was required to bill for RPM services. Upon the end of the PHE, an established relationship with the patient prior to providing RPM services will once again be required.
Prior to the PHE, clinicians could only bill for CPT codes 99453 and 99454 with at least 16 days of collected data. During the PHE, clinicians are permitted to report CPT codes 99453 and 99454 with as little as two days of collected data if a patient is diagnosed with, or suspected of having COVID-19. After the PHE ends, 16 days of collected data will once again be required to report these codes.
Clinicians are permitted to furnish RPM services to patients with acute or chronic conditions during the PHE. Prior to the PHE, RPM services were limited to patients with chronic conditions. CMS has clarified RPM services may continue to be furnished to patients with chronic or acute conditions after the PHE ends.
Frequency Limitations on Certain Telehealth Codes – Reestablished Limitations
Frequency limitations on the furnishing of services reportable by CPT codes 99231-99233, 99307-99310, and G0508-G0509 are removed during the PHE. After the end of the PHE, frequency limitations will revert to pre-PHE standards, and subsequent inpatient visits may only be furnished via Medicare telehealth once every three days (CPT codes 99231-99233), skilled nursing facility visits may only be furnished via Medicare telehealth once every fourteen days (CPT codes 99307-99310), and critical care consults may only be furnished via Medicare telehealth once per day (CPT codes G0508-G0509).
Clinician Licensure – Reestablished Limitations
During the PHE, CMS waived the Medicare requirement that a physician or non-physician practitioner be licensed in the state in which they are practicing if the physician or practitioner 1) is enrolled as such in the Medicare program, 2) has a valid license to practice in the state reflected in their Medicare enrollment, 3) is furnishing services — whether in person or via telehealth — in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity, and 4) is not affirmatively excluded from practice in the state or any other state that is part of the section 1135 emergency area. Upon the termination of the PHE, licensure restrictions will revert back to a deferral to state law.
As the termination of the PHE commences, providers should closely review the evolving scope of telehealth coverage to ensure compliance with applicable CMS rules. Our team will continue to monitor telehealth developments and provide updates as they arise. Providers with questions or seeking counsel can contact any member of our Healthcare team for assistance.
 For additional information regarding the CAA please see the following resource: Key Healthcare Provisions of the Consolidated Appropriations Act, 2023 | Healthcare Law Blog (sheppardhealthlaw.com).
 The CY 2023 Physician Fee Schedule Final Rule clarified that services that were added to the List on a Category 3 basis would remain on the List through December 31, 2023. Codes that were not on the list on a Category 1, 2 or 3 basis but were impacted by the extension of flexibilities in the CAA would be available 151 days after the end of the PHE. CY 2023 Physician Fee Schedule, 87 Fed. Reg. 69404, 69460-69461 (Nov. 18, 2022).