Key Proposals for Telemedicine in Calendar Year 2023 Medicare Physician Fee Schedule Proposed Rule | Baker Donelson

On July 29, 2022, the proposed rule for the 2023 calendar year (CY) Medicare Physician Fee Schedule (PFS) was posted to the Federal Register. The proposed rule contains several notable proposals related to telemedicine and other remote services. Highlights include proposals to allow Medicare coverage for additional telehealth services, expanding coverage of certain temporarily covered telehealth services, and advising on modifiers that will be required for telehealth claims following the COVID-19 public health emergency (PHE).

The deadline for comments on the proposed rule is September 6, 2022 at 5:00 p.m.

Here is a more detailed summary of the key provisions of the proposed rule.

Additions to the list of Medicare telemedicine services

Prior to the COVID-19 PHE, Medicare only covered certain services provided via telemedicine, including (1) professional consultations, (2) in-office visits, (3) in-office psychiatric services, and (4) all ancillary services, as determined by the HHS Secretary when provided via an interactive telecommunications system. These services are all included in a list that is revised and published annually in the PFS (Medicare Telehealth List). CMS annually considers proposals to add services to the Medicare telehealth list on a Category 1 basis. This means that the proposed services will be similar to in-office professional consultations, physician visits and psychiatric services already on the list.

In addition, CMS may add services to the Medicare Telehealth List on a Category 2 basis if there is evidence of clinical benefit if the services are delivered via telemedicine. Finally, CMS introduced a new Category 3 in the final rule for the CY 2021 PFS to temporarily add services to the list until the end of the year in which the COVID-19 PHE expires. Category 3 services must have a likely clinical benefit when delivered via telemedicine, although there is insufficient evidence to consider these services for permanent addition on a Category 1 or Category 2 basis.

In its final CY 2022 PFS rule, CMS stipulated that Category 3 services would be retained through December 31, 2023 to facilitate the transition from the expanded list of services provided during the COVID-19 PHE to the Medicare telehealth list were added. During this period, CMS is evaluating whether the services should be permanently added to the Medicare telehealth list after the COVID-19 PHE ends.

Proposed Category 1 additions

The proposed rule would add three telehealth codes for extended E/M services on a Category 1 basis to Medicare’s list of telehealth services.

  • GXXX1 (extended in-hospital or observational assessment and management services beyond total primary service time if primary service selected using time on primary service date; every additional 15 minutes by physician or qualified health care professional, with or without direct patient contact – list separately in addition to CPT codes 99223, 99233 and 99236 for inpatient or observational assessment and administration services).
  • GXXX2 (extended care facility assessment and management service(s) beyond the total time of the baseline service if the baseline service was selected by time on the baseline service date; each additional 15 minutes by the physician or qualified healthcare professional, with or without direct patient contact – list separately in addition to CPT codes 99306 or 99310 for care facility assessment and management services).
  • GXXX3 (extended home or apartment appraisal and management service(s) beyond the total time for the main service, if the main service was selected using the time on the day of the main service; every additional 15 minutes by the doctor or a qualified medical professional, with or without direct patient contact – list separately in addition to CPT codes 99345 or 99350 for home or apartment evaluation and management services).

These codes would replace existing extended service codes that are on the Category 1 list, including stationary extended services (CPT codes 99356 and 99357).

Proposed Category 3 additions

CMS proposes to add 54 category 3 services. The services can be divided into nine categories:

  1. adaptive behavior treatment and behavior recognition assessment;
  2. audiological;
  3. behavioral health;
  4. Understanding;
  5. electronic analysis of implanted neurostimulator pulse generators/transmitters;
  6. ophthalmology;
  7. speech therapy;
  8. Therapy; and
  9. ventilation management.

A list of proposed Category 3 services is given in Table 8 of the proposed rule.

Expanded coverage of temporary telemedicine services

During the COVID-19 PHE, CMS temporarily added telehealth services to the Medicare telehealth list, except for Category 3. A list of temporary telehealth services is provided in Table 10 of the proposed rule. Currently, Medicare coverage of services will end upon expiration of the COVID-19 PHE. In the proposed rule, CMS would extend this coverage: Medicare would cover benefits until 151 days after the end of the COVID-19 PHE. CMS writes that this extension is compliant with the telemedicine provisions in the Consolidated Appropriations Act, 2022 (CAA). For more information on the CAA’s telemedicine regulations, click here.

Limiting coverage of audio-only telehealth services

CMS declined to keep telephone E/M services on the Medicare telehealth list after the 151-day extension period after the PHE. CMS recognizes that in certain circumstances, audio-only technology can be used to provide mental health services to patients in their homes after PHE ends. Outside of this context, two-way audiovisual communication technology will continue to be the appropriate standard for Medicare telehealth services.

Using modifiers for telehealth services after PHE

CMS has directed practitioners during the COVID-19 PHE to add the modifier “95” to claims to indicate a telehealth service instead of using Point of Service (POS) 02 for all telehealth claims. This temporary policy has allowed claims for telehealth services to be paid based on the POS where the service would generally be provided during PHE. CMS now suggests that practitioners continue to use Modifier 95 for 151 days after the end of the PHE. After this 151 day period, CMS would no longer require the 95 modifier. Practitioners would instead need to use the following POS indicators for telemedicine services:

  • POS “02” – This code, when completed, would be redefined as “Telemedicine provided except at the patient’s home” (Description: the location where health care and health-related services are provided or received via telecommunications technology. The patient is located not at home when receiving health services or health-related services via telecommunications technology); and
  • POS “10” – Telemedicine at the patient’s home (Description: the place where health care and health-related services are provided or received via telecommunications technology. The patient is at home (which is a location other than a hospital or other facility in the patient is cared for in a private residence) when accessing health services or health-related services via telecommunication technology).

Barring further legislative changes, most telehealth services will be billed under POS 02 and will not be covered by Medicare when delivered to beneficiaries’ homes. Telemedicine services billed with POS 02 after the end of the PHE will again be remunerated at the MPFS set-up tariff. Exceptions include requests for Medicare mental health telehealth services, clinical assessments for patients with ESRD receiving dialysis at home, and Medicare mental health telehealth services that occur concurrently with drug treatment and that the patient receives at home. For these exceptions, POS 10 should be used by the billing practitioner.

CMS further proposes that a practitioner add modifier 93 to claims relating to services provided through audio-only technology. This proposed change would take effect on January 1, 2023.

Delay in imposing periodic in-person visit requirements applicable to at-home mental health telemedicine service coverage

The 2022 CY PFS CMS Final Rule implements the CAA 2021 regulations that allow Medicare to provide coverage for certain mental health services provided to a patient at home via telemedicine. This expanded coverage of telehealth services for the treatment and diagnosis of mental health disorders is only eligible if an in-person, non-telehealth service has been provided by the physician or practitioner providing mental health telehealth services within six months prior to the first telehealth service thereafter at least once every six months. This rule is scheduled to come into effect the day after the COVID-19 PHE.

Per the CAA, 2022, CMS is proposing to defer the periodic in-person visit requirements associated with this coverage to 151 days after the COVID-19 PHE. Until that date, telehealth services provided to Medicare beneficiaries for the diagnosis and treatment of mental disorders can be provided in their homes without prior or intermittent in-person visits under COVID-19-related flexibilities that temporarily override original location requirements.

Comments on Virtual Direct Supervision

CMS declines to extend the temporary policy to allow practitioners to meet the immediate availability requirement for direct virtual presence monitoring via real-time audiovisual technology outside of the PHE. CMS solicits comments on whether to allow this in the future and/or whether this policy should only be continued for a subset of services.

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The proposed rule would make several notable changes to Medicare’s coverage of telehealth services. It would add services to the Medicare telehealth list, extend Medicare coverage of certain temporary telehealth services by 151 days, and change how practitioners report telehealth services to process claims post the COVID-19 PHE. It is also delaying the expansion of Medicare’s coverage of mental health telehealth services and is asking for feedback on whether virtual direct monitoring should be continued on a permanent basis.

Interested stakeholders have until September 6, 2022 at 5:00 p.m. ET to comment on the proposed rule. Stakeholders can submit comments at this link or by email:

  • Normal post: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1770-P, PO Box 8016, Baltimore, MD 21244-8016; and
  • Express night mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1770-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

Stakeholders submitting comments by mail should allow time for their comments to be received before the deadline.

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