PHE Expiration Implications for PTs, OTs, and SLPs

With the public health emergency (PHE) set to expire on May 11, many of the temporary provisions put in place during the pandemic for healthcare providers and patients are starting to be phased out as well. For rehab therapists, the biggest question about the PHE expiration has been the future of telehealth as an available service. Fortunately, recent developments have provided a little bit of clarity on that front—albeit with a lot of uncertainty remaining. So, we consulted Rick Gawenda, PT, founder and president of Gawenda Seminars & Consulting, to help shed light on the PHE expiration and its impact on physical therapists, occupational therapists, and speech language pathologists.

With the PHE expiration, telehealth was set to go away. 

In the early days of the pandemic, the Centers for Medicare and Medicaid Services (CMS) waived the limitation on which providers could offer telehealth services—meaning that PTs, OTs, and SLPs were eligible to begin using telehealth with patients for the duration of the COVID-19 emergency. However, with the upcoming PHE expiration, telehealth flexibilities were set to become unavailable to rehab therapists for billing with Medicare beneficiaries (although through a regulatory quirk, they would remain available for use, just not to be reimbursed.) Given that telehealth has enabled providers to see patients without an in-person visit—making it easier for more patients to continue their plans of care—there was a strong push to make telehealth a permanent service for rehab therapy.    

Congress stepped in to extend telehealth privileges through 2024. 

With the release of the 2023 proposed rule, it seemed as though CMS was ready to let the temporary telehealth privileges expire at the end of the 151-day transitional period following the PHE expiration, which falls on October 9, 2023. Fortunately, a measure passed by Congress as part of an omnibus bill will see telehealth privileges extended—at least for a little while longer. 

Per Section 4113 of the Consolidated Appropriations Act, 2023, telehealth services will remain in place through December 31, 2024, meaning that providers will still be able to offer (and be reimbursed for) telehealth visits with their Medicare patients. However, as with anything related to Medicare, it’s not quite so cut-and-dried.   

Providers need more guidance from CMS. 

Congress may have extended telehealth privileges through the end of next year, but it falls to CMS to do the regulatory work required to make continued telehealth a reality—and while there’s some guidance clinicians can fall back on, there’s a lot that needs to be ironed out in the coming months. 

Category III codes for telehealth still need to be renewed. 

Rehab therapists were able to use telehealth during the pandemic as a Category III service—a criteria created by CMS in the 2021 final rule for adding services to the Medicare Telehealth Services List temporarily. Category III services are clinically beneficial when furnished via telehealth, but lack the evidence for permanent adoption under Category I or Category II (the permanent telehealth services). Because of this, Category III services seemed set to go away as well with the PHE expiration.

Fortunately, with the passage of extended telehealth services in the Consolidated Appropriations Act, 2023 it seems likely that these Category III codes will be extended in the 2024 proposed rule to keep in line with the legislation. However, as per Gawenda’s account, we’ll have to wait and see how that extension looks in practice when the proposed rule is released.      

More clarity is needed on non-private practice telehealth privileges.

Another point that will require greater CMS guidance is the future of telehealth for non-private practice rehab therapists. The Consolidated Appropriations Act, 2023, doesn’t offer much detail on practice settings when it comes to extended telehealth services, leaving it to CMS to make those determinations. And those determinations are sorely needed, as there seems to be little consensus as to whether non-private practice settings would be covered by the bill or not. 

At present, non-private practice rehab therapists are only able to use telehealth through October 9, 2023—which, absent any guidance or directive prior to the release of the proposed rule could leave non-private practice providers in the lurch during the intervening weeks after the PHE expiration transitional period. That’s why CMS will likely have to make some determination on the continued eligibility of non-private practice providers sooner rather than later, at least for that period.    

Some compliance issues are still up in the air. 

There are some other temporary changes that will either need to be extended, modified or done away with in conjunction with telehealth, either for the remainder of CY 2023 or for CY 2024.   

Direct supervision guidelines

The introduction of telehealth also saw the relaxation of direct supervision guidelines for services provided by PTAs or OTAs. Under the new temporary guidelines, therapists could meet direct supervision requirements by being available through two-way, real-time communication like Zoom, FaceTime, or other means. However, those less-stringent direct supervision rules are set to expire at the end of the calendar year. 

With telehealth continuing on through 2024, CMS will need to determine if those guidelines will be extended through next year as well.  CMS could also opt to make a more permanent change and adopt these PHE guidelines as the new standard—or even move to a general supervision requirement in line with other professions. For now, this article from the APTA recommends that providers prepare to follow pre-PHE regulations regarding supervision starting on January 1, 2024. “Providers should also need to be aware of what their state practice acts say regarding supervision,” Gawenda added. “If your state practice act is more stringent than Medicare guidelines and requires direct supervision that is on premises or in the office suite, then that is the standard you need to adhere to in your practice.” 

Other questions have already been answered—for now. 

CMS addressed a few contingencies for the PHE expiration in previous guidance, although it remains to be seen if some of these rules are altered for CY 2024.  

Place of service (POS) codes remain the same.

Rehab therapists billing for telehealth during the pandemic have been using the same POS codes as if the services had been furnished in-person; for patients that would have been seen in clinic, POS 11 was required, and patients otherwise treated in their home as an outpatient require POS 12. And that practice will remain in place through the rest of CY 2023, as CMS determined in the 2023 Physician Fee Schedule (PFS) that they will “maintain payment for telehealth services at the POS had the services been furnished in-person, and this will allow payments to continue to be made at the non-facility based rate for Medicare telehealth services through the latter of the end of CY 2023 or the end of the calendar year in which the PHE ends.”

CMS also clarifies in the 2023 PFS that “(f)or those services furnished in a facility as an originating site, POS 02 may be used, and the corresponding facility fee can be billed, per pre-PHE policy, beginning the 152nd day after the end of the PHE.” Providers will still need to use modifier 95 along with the corresponding POS code for where the service would have been performed in-person through CY 2023. 

HIPAA requirements for telehealth will be enforced again.  

The rules surrounding HIPAA and telehealth were also relaxed during the PHE; according to this document from the Department of Health and Human Services (HHS) Office of Civil Rights, “Covered health care providers will not be subject to penalties for violations of the HIPAA Privacy, Security, and Breach Notification Rules that occur in the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” However, with the PHE expiration, those penalties are set to be enforced again beginning on May 11. 

Onsite supervisory visits for home health are returning. 

During the PHE, CMS had waived the requirement for rehab therapists and other providers to make on-site supervisory visits for each aide that provided services on behalf of a home health agency. With the PHE expiration, that waiver is ending, and all providers that would otherwise have been required to complete on-site supervisory visits are required to complete their postponed visits within 60 days of the PHE expiration—which in this case would mean a July 10 deadline.    

Requirements for skilled nursing facilities and inpatient rehab facilities are back. 

Also waived during the PHE were the requirement for three days of prior hospitalization for coverage of a skilled nursing facility stay, as well as the requirement that patients in an inpatient rehab facility receive at least 15 hours of treatment a week. Both waivers are set to expire with the PHE expiration.  

Medicare Advantage patients should remain unaffected. 

Because Medicare Advantage plans are provided through private insurers, telehealth privileges will remain in place for plans that were already offering those services. In fact, thanks to changes implemented by CMS in 2020, Medicare Advantage plans were already able to offer telehealth services beyond those offered to traditional Medicare patients—and as a result, 98% of Medicare Advantage plans offered telehealth services as of 2021, according to analysis done by the Kaiser Family Foundation. 

Millions of Medicaid and CHIP patients could lose coverage. 

Similarly, telehealth services for Medicaid and CHIP aren’t tied to the PHE, so coverage will continue in states that currently offer telehealth flexibilities. However, coming months could see far fewer Medicaid enrollees than there were during the pandemic. As we laid out in this blog post, the Families First Coronavirus Response Act (FFCRA) required states to implement continuous enrollment provisions that prevented otherwise ineligible patients from being dropped during the pandemic. However, those provisions were rolled back beginning April 1— meaning that states are beginning the process of disenrolling patients no longer eligible for the program.

The good news is that, in some form or another, telehealth will be sticking around through 2024, at least for some portion of rehab therapists. Unfortunately, we don’t know if it’s going to work exactly as it did during the pandemic—although there is still time for therapists to have their say. 

As CMS notes in this document, “After the PHE ends, we will resume consideration of changes to the Medicare Telehealth Services List exclusively through notice and comment rulemaking”—which means that clinicians will have the opportunity to share their opinions. And the APTA, AOTA, and ASHA are all well-positioned to have a greater influence on policy and regulatory decisions than individual providers. So, if you want to keep telehealth as is, make your voice heard.