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CMS’s 2022 Physician Fee Schedule Holds in Place Telehealth Physician Supervision Requirements 

Makes Permanent Telehealth Behavioral Health Rules
CMS published the 2022 Physician Fee Schedule Final Rule on November 2, 2021. The Rule keeps intact CMS’s temporary physician supervision requirements related to the provision of telehealth services. Direct supervision via real-time audio-visual communications continues to be permitted only through the later of December 31, 2021, or the end of the year in which the Public Health Emergency (PHE) is terminated. Essentially, CMS is temporarily shelving the opportunity to make the current telehealth direct supervision requirements permanent.
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Under CMS rules, “direct supervision” is defined as requiring the physician to be physically present in the same office suite as the supervised non-physician and immediately available to furnish assistance and direction throughout the performance of the treatment. It does not mean that the physician must be present in the room during the performance of the procedure. The 2021 Physician Fee Schedule temporarily revised the direct supervision requirements to permit a supervising physician to be remote and utilize real-time, interactive audio-video technology to provide direct supervision. The revision did not require the physician’s real-time presence, or live observation of, the service via interactive audio-video technology throughout the performance of the procedure.

The 2022 Rule keeps in place the temporary change to the direct supervision requirement through the later of December 31, 2021, or the end of the year in which the Public Health Emergency (PHE) is terminated. According to CMS, the supervision change remains temporary due to concerns regarding safety issues related to physicians’ virtual presence in certain high-complexity and high-risk situations. 

However, the Rule makes permanent expanded access to behavioral health care—especially for traditionally underserved communities. In line with legislation enacted last year, and as discussed in our previous Client Alert, the Rule eliminates geographic barriers and permits patients to access telehealth services for diagnosis, evaluation, and treatment of mental health disorders, including substance abuse disorders, in their homes via audio-only telephone calls. This change helps address the issue of populations resident in areas with low broadband infrastructure. Medicare will also pay for mental health visits furnished in Rural Health Clinics and Federally Qualified Health Centers via audio-only telephone calls.

The display copy of the Final Rule is available here and scheduled for publication in the Federal Register on November 16, 2021.

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