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Medicare LawNew Medicare Law Requires In-Person Visit for Telehealth Coverage

In December 2020, the Consolidated Appropriations Act of 2020, section 123 includes language that requires behavioral health providers to have seen their client in person during the prior six months before a telehealth visit will be covered by Medicare. Further, providers must have in-person visits on a “regular interval” to be determined by the Health and Human Services Department for telehealth visits to be covered by Medicare.

As discussed in the blog by Nate Lacktman, a partner at Foley & Lardner who chairs the Telemedicine and Digital Health Industry team “the in-person exam requirement is at odds with a 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.” (Click here for more information on state telehealth medicare laws.)

Going Backward with Telehealth?

While requiring in-person visits to establish the doctor-patient relationship was a part of many states’ telehealth medicare laws in years past, the trend has been moving towards allowing providers to see new clients via telehealth for the first visit. Enter COVID-19 and the emergency measures put in place to allow for greater coverage and access to healthcare. Many mental health providers closed their brick-and-mortar offices and have guided their new and existing clients to telehealth use to reduce the spread of the virus. (See Virtual Waiting Room.)

What Happened to Parity?

More confounding is the fact that Section 123 of the bill applies only to mental health treatment and not to patients seeking other medical services. Provider reimbursement for mental health services is being predicated on this requirement, in spite of the Mental Health Parity and Addiction Equity Act and years of work to establish mental health parity.

A Hindrance to Accurate, Safe Assessment

This requirement in section 123 is at odds with providing a safe environment in which to establish a positive client-clinician relationship. Especially now during the pandemic, clients are presenting with anxiety related to contracting the virus. Sitting in a small office, provider and client sitting at least six feet apart for 50 minutes with masks on, makes little sense. An integral part of the initial assessment, clinicians depend on visual cues from client facial expressions that are largely hidden by a mask. Moreover, providers wearing masks will have a more difficult time conveying warmth and empathy; so critical to establishing a connection in the first session.   Many times clients are in emotional pain, crying and blowing their noses, adding to the potential for viral spread. Many providers’ offices are outfitted with comfortable fabric chairs that don’t allow for thorough cleaning between clients, making the environment potentially riskier.

Medicare Law: Does Section 123 Actually Block Access to Care?

Clients qualifying for Medicare may be seniors with pre-existing medical conditions. They may want therapy to help cope with the very same physical disabilities that prohibit them from being able to go to a provider’s office. (Click here for more information on helping disabled clients via telehealth). Other clients may also have pre-existing conditions that make them more vulnerable to contracting the virus if they must leave their homes to attend an in-person appointment.

Counselors Still Restricted

Under the current  Medicare law, counselors continue to be excluded from being reimbursed by Medicare for providing counseling services.  Only psychiatrists, psychologists, clinical social workers, and psychiatric nurses are allowed to bill Medicare for counseling services provided to Medicare beneficiaries. Although many attempts to pass Medicare laws to include counselors as Medicare providers have been attempted over the years, none has been successful. On January 21, 2021, however, Rep. Mike Thompson (CA- 05) and Rep. John Kato (NY-24) reintroduced the Mental Health Access Improvement Act, a bipartisan bill that would allow counselors and marriage and family therapists to become Medicare providers. See 

Why Restrict Access to Care During a Behavioral Healthcare Provider Shortage?

While nearly all of the changes that have been made by the federal and state governments to expand telehealth as a result of the pandemic have been helpful in making telehealth more widely available to deliver medical care, section 123 appears to be illogical and care blocking action to behavioral healthcare. Further, with the shortage of mental health providers, especially at this critical juncture with the pandemic creating increasing levels of depression, anxiety, grief, and suicide, counselors are needed more than ever to assist those of the 62 million Medicare beneficiaries in need of mental health care.

An article in the New York Times, February 17th titled “Nobody Has Openings:” Mental Health Providers Struggle to Meet Demand describes how overloaded behavioral health providers have become since the pandemic began. Many are not able to take on new clients and waiting lists stretch out months for many providers. Read the full story here. By passing the Mental Health Access Improvement Act, and allowing the well over 100,000 licensed counselors and marriage and family therapists to render services to Medicare beneficiaries, legislators have an opportunity to create significant gains in access to mental health care for millions of Americans. 

What to Do if You Support Counselors Getting Medicare Reimbursement??

Write a letter to your elected officials about this issue today. Here’s how:

  1. Write to the legislators for whom you can vote. You will find them by searching the Internet by your state or territory of official residence, followed by “.gov” such as California representatives.gov. Alternatively, you can search for Representatives or Senators HERE.
  2. Keep it brief: Letters should never be longer than one page
  3. State who you are and what you want upfront: In the first paragraph, tell your legislators that you are a constituent and identify the issue about which you are writing.
  4. Address your letter correctly. Be sure you use the correct address and salutation. All Presidential appointees and Federal- and State-elected officials are addressed as The Honorable. (b) All Mayors are addressed as The Honorable. However, as a general rule, county and city officials are not addressed as The Honorable. For example, “The Honorable (Full Name), Governor of (State).” 
  5. Be polite and avoid ultimatums and rudeness.
  6. Do not enclose additional material. 
  7. Do not exaggerate or lie.
  8. Make sure your message is timely.
  9. Address only one issue per letter. …
  10. Ask for something specific. …
  11. Make it personal. …
  12. Restate your request at the end of the letter, for example urging them to support or oppose the bill.
  13. Thank the legislator for his or her support and offer to address any questions that he or she might have.
  14. Be sure to include your contact information, and sign the letter.z

See   TBHI’s Medicare Telehealth Reimbursement: Act Introduced to Allow Counselors to be Reimbursed by Medicare for a legislative update on the issue of counselors becoming eligible for Medicare reimbursement.


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