Behavioral Health Newsletter

March 2023


During the COVID-19 Public Health Emergency (“PHE”), the Centers for Medicare & Medicaid Services (“CMS”) waived certain Medicare coverage requirements to allow providers the flexibility to continue to treat patients who are located in their homes.[1] This allowed hospitals to bill under the Outpatient Prospective Payment System (“OPPS”) (or CAH payment methodology) for certain services furnished in the Medicare beneficiary’s home as if the services were performed in the hospital. However, the flexibilities issued were set to expire after the PHE ends, which would require beneficiaries to once again travel to the hospital to continue receiving outpatient hospital services. Accordingly, it should come as a relief to behavioral health providers that CMS has permanently extended many of these flexibilities.

On November 1, 2022, CMS released the Calendar Year 2023 OPPS and Ambulatory Surgical Center Payment System Final Rule (the “Final Rule”). In the Final Rule, CMS acknowledged that the services provided to beneficiaries in their home will be provided through telehealth and has established several rules, which are discussed below, that providers must follow to continue to receive reimbursement under OPPS.

Billing for behavioral health telehealth services through OPPS will be done through special HCPCS codes

To bill the telehealth services provided in the patient’s home, CMS created OPPS-specific “C-­Codes” for hospitals to utilize. The proposed code descriptors specify that the beneficiary must be in their home. Importantly, the descriptor also identifies that there is no associated professional service billed under the physician fee schedule (“PFS”) when billing the corresponding C-Code.

CMS plans to lower the payment rates for behavioral health telehealth services billed through OPPS

Unfortunately for behavioral health providers, CMS will not pay the hospital for the telehealth services at the full OPPS rate it currently pays during the PHE. CMS stated in the Final Rule that when the beneficiaries are in their homes, the hospital is not incurring the same costs as with in-person services. As a result, CMS does not believe the OPPS rate accurately reflects those costs to the hospital. CMS will set the OPPS rate to the new C­Codes at the equivalent PFS amount which reflects only the professional work associated with performing the telehealth service. Ultimately, this will result in lower payments to hospitals for telehealth services provided to beneficiaries in their home as opposed to a patient who is located within the hospital.

Audio only telecommunications will continue to be reimbursable in certain scenarios past the PHE

CMS previously waived the requirements that an “interactive telecommunications system” included two-way audio and video capabilities for the duration of the PHE which allowed some services to be offered solely through audio communication. The Final Rule detailed that despite the conclusion of the PHE, some beneficiaries may still have limited access to broadband due to geographic/socio­economic challenges. Therefore, under the Final Rule, CMS will now allow audio-only communications where (1) the physician or practitioner furnishing the telehealth service is either able to use two-way audio/video communications, but the beneficiary is not capable (e.g., no broadband is available); or (2) the beneficiary does not consent to the use of two-way audio/video communications.

In-person visit requirements will apply to beneficiaries who receive behavioral health telehealth services after the PHE

The current PHE is set to expire on May 11, 2023. Thankfully, through the Consolidated Appropriations Act (the “CAA”) of 2022 and CAA of 2023, Congress took steps to extend some of the PHE telehealth waivers. CMS implemented the below two constraints related to in-person visits for telehealth services provided after the two-year window created under the CAA. Please note that the “6-month” telehealth rule addressed below will take effect on January 1, 2025. The “12-month” rule will take effect on October 10, 2023. [2]

As an initial matter, the beneficiary must receive an in-person service no later than 6 months prior to the first time the hospital clinical staff provides the telehealth services. This requirement only applies to beneficiaries who are provided telehealth services for the first time after the two-year window under the CAA. If a beneficiary was seen for telehealth services during the PHE or the two-year window, no 6-month in-person service requirement applies.

That said, CMS will require that an in-person service without the use of telecommunications technology be provided within 12 months of each remote mental health service by the hospital clinical staff. CMS will allow an exception to this requirement only if both the hospital clinical staff member and the beneficiary agree that the risks and burdens of an in-person service outweigh the benefits of it. Exceptions to the in-person visit requirement must be documented in the beneficiary’s medical record.

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The information contained in this newsletter is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.

[1] CMS Interim Final Rule, April 30, 2020, available at:­ifc2.pdf.

[2] The CY 2023 PFS final rule deferred the implementation of these requirements until 152 days after the PHE ends. Although the 2023 CAA provisions have extended the statutory in-person requirement until December 31, 2024, the CMS requirements remain delayed only for the said 152-day period after the PH E ends, which has resulted in a discrepancy between the statutory and regulatory in-person requirements.

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