In the final rule on the 2021 Medicare physician fee schedule released on December 1, 2020, the Centers for Medicare and Medicaid Services (CMS) discusses several key issues including how the end of the COVID-19 public health emergency (PHE) will impact telehealth and whether certain nonphysician providers (NPPs) can supervise psychological and neuropsychological testing services.

For 2021, CMS is creating a new category 3 for services that will be temporarily available through telehealth. In order for stakeholders such as APA to have sufficient time to gather data showing that category 3 services should become permanent in telehealth, CMS will reimburse category 3 services under telehealth through the end of the calendar year in which the PHE ends. Codes added to the new category 3 include the psychological and neuropsychological testing evaluation codes and the psychological and neuropsychological testing administration and scoring codes.

CMS also addressed what will happen to the current waivers from the telehealth requirements adopted during the PHE. CMS was able to afford providers more flexibility only after being granted waiver authority under federal legislation. CMS on its own does not have the authority to waive the various requirements in telehealth. At this time, the end of the PHE will reinstate the Medicare telehealth requirements in effect prior to March 1, 2020.

These requirements include:

  • Patients must be in an originating site to receive telehealth services. With very limited exceptions, a patient’s home is not an originating site.
  • Telehealth services are limited to established patients. New patients must have at least one in-person visit with a provider before being eligible for telehealth.
  • Telehealth services are limited to patients residing in rural areas of the country.
  • Audio-only telephones will not satisfy the criteria for telehealth. Under the current federal regulations, telehealth requires simultaneous, two-way real-time audio and visual communication.

Congress is poised to pass an expansive end-of-year COVID relief package this week that would permanently allow all Medicare beneficiaries to receive telemental health services at home after the PHE ends. To be able to receive telemental health services at home, the individual must have been seen in person by the practitioner during the six months prior to the telemental health service. Additional in-person requirements will be determined by the Secretary of Health and Human Services (HHS). The provision stems from the Telehealth Expansion Act (S. 4230), led by Senate Finance Committee Ranking Member Ron Wyden (D-OR), and the Mental Health Telemedicine Act (H.R.1301), led by Reps. Suzan DelBene (D-WA) and Tom Reed (R-NY).

APA will continue to prioritize with the new Congress and Administration the need to increase Medicare beneficiaries’ access to mental and behavioral health services through permanent telehealth changes, notably audio-only telephone services. APA advocated for Congress to pass legislation that will allow the flexibility under the current waivers for telehealth to remain in effect after the PHE ends.

Also of great interest to psychologists is the proposal by CMS to allow certain NPPs to supervise psychological neuropsychological testing services. In an effort to allow nurse practitioners, clinical nurse specialists, certified nurse midwives, certified registered nurse anesthetist, and physician assistants to practice to the full extent of their licensure, CMS proposed revising a regulation to allow these NPPs to supervise diagnostic testing. APA provided CMS with information showing that these NPPs have virtually no training or experience in psychological and neuropsychological testing and lack the type of expertise that psychologists must have to administer and supervise these tests.

While CMS acknowledged the points made by APA, the agency is going to allow these NPPs to supervise diagnostic testing services, which includes psychological and neuropsychological testing, so long as such activity falls within their scope of practice under state law.

Although not part the final rule, APA also wants to remind psychologists about the current nonenforcement policy for the privacy and security requirements involving telehealth services during the PHE. The notification of enforcement discretion issued by the HHS Office of Civil Rights (OCR) on April 2, 2020, does not have an expiration date. OCR will issue a notification informing the public when it will stop exercising its enforcement discretion regarding telehealth services.