Questions Arise Over Medicare Coverage for Mental Health Services by Telehealth

February 15, 2021 - An overlooked part of last year’s pandemic relief bill is causing headaches for mental healthcare providers seeking Medicare reimbursement for telehealth visits – and prompting one expert to call it the “worst Medicare telehealth law of 2020.”

One sentence tucked into almost 6,000 pages of the Consolidated Appropriations Act of 2020, signed into law by then-president Donald Trump just before the end of the year, requires providers to have seen their patients in person within the prior six months before the connected health visit to qualify for Medicare coverage, and to continue in-person visits at regular intervals. That frequency would be determined by the Health and Human Services Department.

Telehealth advocates had hailed expanded telehealth coverage for mental health services as one of the few bright lights of last year’s pandemic relief bill, saying it helps to address skyrocketing rates of stress, depression, anxiety and substance abuse being caused by the COVID-19 crisis.

The one sentence in section 123 of the bill flew under the radar for many, through there have been a few mentions as of lately. The first to address it head-on is Nate Lacktman, a partner with the Foley & Lardner law firm and chair of the firm’s Telemedicine & Digital Health Industry Team, who devoted a blog today to the issue.

“Little legislative history is readily available that reflects Congressional lawmakers discussing the merits of Section 123’s requirement for an in-person exam,” Lacktman wrote. “To be fair, at 5,593 pages and $2.3 trillion, this legislation is the longest bill ever passed by Congress and one of the largest spending measures ever enacted. But the in-person exam requirement is at odds with the direction that telehealth policy has moved over the last decade. It disrupts Medicare’s historical approach, which is to defer to state laws on professional practice requirements and clinical standards of care.”

“This law may very well be the first and only instance of a federal statute expressly mandating an in-person exam as a prerequisite for Medicare coverage of a telehealth-based service,” he added.

The idea of using in-person visits to establish the doctor-patient relationship isn’t new, and had been a staple of many state laws establishing telehealth coverage until a few years back. Since then, lawmakers have moved away from that requirement, in many cases allowing providers to meet new patients via telehealth without that in-person visit.

The COVID-19 crisis has made that a preference, if not a necessity. In the early days of the public health emergency, and taking advantage of emergency measures to support extended coverage and access, many providers sharply restricted in-person visits or even closed that option down, moving as much as possible into virtual care to reduce the chances of infection.

Lacktman also questioned why the bill targets only mental health treatment.

“Medicare beneficiaries seeking medical services via telehealth are not subject to this requirement,” he wrote. “It is only those patients seeking treatment of mental health disorders who are required to ‘mask up’ and head to their practitioner for an in-person exam. It prompts consideration as to why mental health care is being held to different payment restrictions than medical care, despite years of efforts on mental health parity and the passage of the Mental Health Parity and Addiction Equity Act.”

That one sentence is likely to negatively affect not only mental healthcare providers who are using telemental health channels to help a larger population of patients, but also those in need of help who can’t or won’t visit a doctor’s office for care.