Telehealth Billing After the PHE Ended May 11, 2023: What Continues, What Ended

The COVID-19 public health emergency, first declared on January 31, 2020 and renewed every 90 days since, expired yesterday, May 11, 2023. The administration announced the end date on January 30, so nobody was surprised. What surprised several practices we spoke to this week is how little of the telehealth billing they do is actually affected, and how many of the rules that did change are about things other than telehealth.

The reason is the Consolidated Appropriations Act, 2023, signed December 29, 2022. Congress extended most of the Medicare telehealth flexibilities through December 31, 2024, independent of the emergency. So the list below has two columns: what continues because of that law, and what ended on May 11 because it was tied to the emergency declaration alone.

Key takeaways

• Medicare telehealth from the patient's home, in any geographic area, continues through December 31, 2024 under the Consolidated Appropriations Act, 2023.
• For the rest of 2023, bill Medicare telehealth with the place of service you would have used in person (POS 11 for the office) plus modifier 95; that pays the non-facility rate.
• The HIPAA enforcement discretion for consumer video apps ended May 11 with a transition to August 9, 2023. After that, the platform needs a BAA.
• Cost-sharing waivers for COVID-19 testing visits (the CS modifier) and the free over-the-counter test benefit under Medicare Part B ended May 11.
• Commercial and Medicaid telehealth rules were never tied to the federal emergency in a uniform way. Build a payer grid and check it quarterly.

What continues through December 31, 2024 for Medicare

• Patients can receive telehealth at home and in any geographic area. The pre-pandemic rule limiting telehealth to rural originating sites is suspended through 2024.
• The expanded list of telehealth-eligible practitioners continues, including physical therapists, occupational therapists, speech-language pathologists and audiologists.
• Federally qualified health centers and rural health clinics can continue to serve as distant sites.
• Audio-only telehealth continues for services on the Medicare telehealth list that CMS has designated as appropriate for audio-only delivery.
• The requirement for an in-person visit within six months before telehealth mental health services (and every twelve months after) is delayed until January 1, 2025.
• Hospice face-to-face recertification can continue by telehealth.

How to bill Medicare telehealth for the rest of 2023

CMS has said that through December 31, 2023, practitioners should continue to bill telehealth the way they have during the emergency: use the place of service code that would have applied if the visit had been in person (POS 11 for an office visit) and add modifier 95. Billed that way, the service pays at the non-facility rate. Place of service 02 (telehealth other than in the patient's home) and 10 (telehealth in the patient's home) exist and some payers want them, but on Medicare claims in 2023 they produce the lower facility rate, which on a 99213 is roughly a quarter less at national rates. For audio-only services, CPT modifier 93 identifies the encounter and Medicare uses modifier FQ for audio-only mental health services. Check what your Medicare Administrative Contractor has published; the specifics have changed more than once.

What ended on May 11, 2023

1. The HIPAA enforcement discretion for telehealth platforms ended with the emergency. OCR has given a 90-day transition to August 9, 2023, after which video tools must meet the Security Rule and be covered by a business associate agreement.
2. The CS modifier and cost-sharing waivers for COVID-19 testing-related services ended. Cost sharing applies again to the visit where a test is ordered under the normal rules. Medicare continues to cover COVID-19 vaccines under Part B without cost sharing, but the free over-the-counter test program under Part B ended on May 11.
3. Several Medicare waivers not related to telehealth ended, including the waiver of the three-day inpatient stay before skilled nursing facility coverage and various hospital capacity waivers. If you bill for nursing facility patients, the three-day rule is back.
4. Direct supervision through real-time audio and video did not end on May 11; CMS extended that flexibility through December 31, 2023 in the 2023 physician fee schedule. It is on the list here because practices keep asking, and because it is scheduled to end in December unless CMS acts again.
5. Controlled substance prescribing via telehealth without a prior in-person visit did not end either. The DEA issued a temporary rule on May 9, 2023 extending the flexibilities through November 11, 2023, with a further year for patient relationships established by then. Watch this one; the DEA's proposed permanent rule drew a very large number of comments and is not final.

Commercial and Medicaid payers: no single answer

Everything above is Medicare. Commercial plans wrote their own emergency policies, and some tied them to the federal emergency, some to state emergencies (many of which ended in 2022), and some to a date of their own. State Medicaid programs are in the same position, on top of the unwinding renewals that started April 1. Many states passed telehealth payment parity laws during the pandemic that are now permanent for fully insured plans. Self-funded employer plans are not bound by those laws.

The practical approach is a payer grid: for each of your top ten payers, the telehealth policy document, its date, the POS and modifier the plan wants, whether audio-only is covered, whether payment parity applies, and the policy's end date if it has one. Revisit it quarterly. Denials to watch are CO-4 (procedure inconsistent with modifier), CO-5 (procedure inconsistent with place of service) and CO-96 (non-covered charge), each of which appears when the plan's POS and modifier rules differ from Medicare's.

A fictional example of why the grid matters: a family practice bills 99213 telehealth visits to three payers the same way it bills Medicare, POS 11 with modifier 95. Payer A accepts it. Payer B's policy, updated in January, requires POS 10 for home visits and pays parity; the claims deny CO-5 until the rule is changed. Payer C stopped covering audio-only visits when the state emergency ended last year, and every audio-only 99213 comes back CO-96. Three payers, three rules, and none of them changed on May 11. The practice that built the grid in April already knew this. The one that didn't is learning it from the remittances.

What auditors will ask for

Telehealth claims from 2020 through 2022 are already the subject of Medicare audits and OIG reviews, and the post-emergency period will be too. The documentation that makes a telehealth claim defensible has not changed: the patient's location (home, and the state, which also settles licensure), the clinician's location, the modality (video, or audio-only with the reason video was not used), the patient's consent to a telehealth visit, the names of everyone on the call, and the start and stop times. A template line that captures all of this in one sentence costs nothing and answers most record requests. Time also matters because, with the 2021 and 2023 E/M rules, many telehealth visits are coded by total time, and the audio-only list is limited to services where the clinician could reasonably deliver the care without video.

Questions we hear

Can we still see new patients by telehealth?

For Medicare, yes through 2024; the requirement for an established relationship was waived and the extension covers it. Commercial plans vary. State licensure still requires the clinician to be licensed where the patient is located at the time of the visit, and the interstate licensure waivers many states issued in 2020 have mostly ended.

Does telehealth pay the same as an office visit for the rest of 2023?

For Medicare, when billed with the in-person POS and modifier 95, yes. Whether that continues in 2024 depends on the physician fee schedule rule CMS will propose this summer. For commercial plans, check the contract and the state parity law.

Where should the telehealth visit be documented differently?

Record the patient's location, the clinician's location, the modality (video or audio-only, and if audio-only, why video was not used), the patient's consent, and the start and stop times. That is what auditors ask for, and it is what makes the modifier defensible. Revelrex billing clients receive the payer grid described above as part of setup, and our RCM courses include a telehealth billing module updated for the post-emergency rules.

What to do this month

1. Confirm that your telehealth platform has a signed BAA and remove any consumer video app from the workflow before August 9.
2. Rebuild the telehealth billing rule in your practice management system to be payer-specific: Medicare gets in-person POS plus 95 through year end; each commercial plan gets what its policy says.
3. Check the claims from May 11 onward for CS modifiers that should no longer be there, and correct them before they deny or pay incorrectly.
4. Update patient-facing notices: cost sharing applies to telehealth visits under the normal plan rules, and over-the-counter tests are no longer free under Medicare.
5. Build or refresh the payer grid for your top ten payers and put the quarterly review on the calendar.
6. Put December 31, 2023 on the calendar for the supervision and POS rules, and December 31, 2024 for the statutory extension. Both will need attention.