By JENNI COLAGIOVANNI
Wachler & Associates, P.C.

The COVID-19 Public Health Emergency (PHE) resulted in the waiver of certain pre-pandemic restrictions to expand Medicare coverage of telehealth services and increase access to care for Medicare patients.  More than a year and a half after the end of the PHE, several of these continuing telehealth flexibilities are set to expire on December 31, 2024, returning Medicare coverage of some telehealth services back to their pre-pandemic requirements.

Background: Prior to the COVID-19 pandemic, Medicare coverage of telehealth services was primarily limited to patients located in rural areas and restricted to certain provider types and services. Patients were generally required to travel to approved clinical sites to engage in telehealth services from providers in other locations. Early in the pandemic, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) broadened the Secretary of the Department of Health and Human Services’ waiver authority under section 1135 of the Social Security Act.  Pursuant to this broadened authority, CMS waived the requirements of section 1834(m)(4)(E) of the Act and 42 CFR § 410.78 that specified the types of “distant site” practitioners that could bill Medicare for telehealth services to include all practitioners eligible to bill Medicare for their professional services.  The COVID telehealth waivers also increased access by waiving the statutory and regulatory geographic restrictions and limitations related to the location of the beneficiary when the telehealth services occur (known as the “originating site”).

Expiring Flexibilities: As outlined in the HHS Fact Sheet, the Consolidated Appropriations Act, 2023, extended many of the Medicare telehealth flexibilities through December 31, 2024, including:

  • Access to telehealth services in any geographic area in the U.S. (rather than only in rural areas);
  • Allowing patients to receive telehealth services in their homes, rather than requiring travel to a health care facility (“originating site”);
  • Allowing certain Medicare telehealth visits to be delivered via audio-only technology if the person is unable to use both audio and video; and
  • Permitting telehealth services to be provided by any healthcare providers eligible to bill for Medicare-covered services.

At present, these flexibilities have maintained the expanded access to telehealth services for both urban and rural Medicare patients alike and allowed patients to continue the pandemic-era practice of receiving telehealth services in their home.  Likewise, the scope of services permitted to be provided by way of telehealth has remained expanded to include physical therapy, occupational therapy, speech therapy, and emergency department visits, among others. Eligible telehealth providers (referred to as “distant site” providers) were expanded to include all providers eligible to bill Medicare and eligible providers were permitted to conduct initial visits via telehealth, whereas prior to these flexibilities, the provider was required to have treated the patient in the preceding three years. As the year draws to a close, it is important for providers to recognize that the aforementioned flexibilities are set to expire at the end of December absent action by Congress to extend.

Recent Extension of Direct Supervision by Telehealth: The 2025 Physician Fee Schedule (PFS) Final Rule notably included a recent extension of direct supervision by telehealth.  As background, CMS has created three levels of supervision: personal, direct, and general supervision, and various services may require one of these three levels of supervision in order for the Medicare coverage requirements to be met. Direct supervision in the office setting has historically meant that the physician must be present in the office suite and immediately available to furnish assistance and direction throughout the performance of the procedure. During the PHE, CMS expanded the definition of direct supervision to provide for the presence of the physician (or other practitioner) to include virtual presence through real time audio/visual communications technology. This particular flexibility had been extended several times and was extended again in the 2025 PFS Final Rule, which provides for the acceptance of direct supervision by virtual presence through December 31, 2025. Whether this flexibility will be extended beyond December 31, 2025 or ultimately made permanent remains to be seen.

Permanent Changes: Notably, some telehealth flexibilities that originated during the COVID-19 pandemic have been made permanent after the end of the PHE through other legislation.  For example, there are no geographic restrictions on the originating site for behavioral/mental telehealth services and Medicare patients can receive behavioral/mental health telehealth services in their home.  Moreover, behavioral/mental health telehealth services are permitted to be delivered using audio-only communication platforms.

It is important to note that this article is intended to serve as general overview of some of the current Medicare telehealth flexibilities and should not be considered comprehensive. Further, coverage of telehealth services under Medicare Advantage plans, state Medicaid programs, and private insurance plans varies considerably. Providers are well-advised to independently evaluate the implications of both the permanent telehealth changes and any expiring flexibilities, by payer, to determine the impact on their individual practice.