(Updated 5/1) Telepsychiatry and COVID-19
Update on Telehealth Restrictions in Response to COVID-19
Updated May 1, 2020
On March 6, 2020, the Coronavirus Preparedness and Response Supplemental Appropriations Act was signed into law. This statute gives the Secretary of Health and Human Services (HHS) the authority to waive geographic and originating site Medicare telehealth reimbursement restrictions for mental health services overall, during certain emergency periods.
CMS released guidance on March 17, 2020, that NOW allows patients to be seen via live videoconferencing in their homes, without having to travel to a qualifying "originating site" for Medicare telehealth encounters, regardless of geographic location. See below for new HIPAA information related to telehealth.
When conducting a telemedicine encounter, you will use the same CPT codes as if the encounter were in-person, but with the Place of Service (POS) that aligns with your specific encounter. So:
For new telepsychiatry encounters provided to patients under the waiver that would have been office visits, psychiatrists should consider their office as the place of service (POS) and use the place of service code 11, just as you did when you were seeing your patients in person. If you are providing inpatient care, you should use the place of service you would ordinarily use for that place even though you are not actually there. You should use the same CPT codes you would use for an in-person encounter, and on the 1500 Claim Form you should add the modifier 95 after each CPT code to indicate the care was provided as telemedicine. These same directions should be applicable for most commercial payers as well. Please let APA know if your experience is different.
Those psychiatrists who were previously providing telepsychiatry under Medicare’s pre-waiver rules should continue to report this care as they always have, for example, with POS 02.
Also note that some private payers may ask for a similar billing standard, including modifier 95, which indicates a telemedicine encounter, as well. Click here to read the release from the Center for Medicare and Medicaid Services (CMS), which provides detailed Fact Sheets and FAQs about what constitutes a telehealth encounter for reimbursement purposes. As of 03/31/2020, CMS has changed additional regulations around the use of telehealth in the Medicare program, including the use of telephone, and licensure for Medicare providers. See below for additional information.
What You Can Do
If you are considering transitioning patients to telepsychiatry in place of in-person appointments, APA's Telepsychiatry Toolkit is a good place to start. The Toolkit contains 60+ individualized pages with guidance on topics related to telepsychiatry, such as clinical considerations, administrative and technical requirements for software issues, and reimbursement
For those looking to get started right away, APA and the American Telemedicine Association co-published a guide for doing so, which can be accessed here: Best Practices in Videoconferencing-Based Telemental Health.
SMI Adviser (a joint APA and SAMHSA initiative) has also released an infographic to share with patients, "How to Prepare for a Video Appointment with Your Mental Health Clinician."
Getting Started: Technical Specifications
Telemedicine is the use of live videoconferencing to facilitate a patient encounter. For Medicare, Medicaid, and most private insurers, this does not include telephone alone; an encounter must be live video and audio paired together.
For the duration of this emergency declaration, HHS has indicated that it will waive HIPAA penalties for using non-HIPAA compliant videoconferencing software, allowing for popular solutions, such as Skype (basic) and FaceTime to be used to conduct telehealth sessions via video. The Office of Civil Rights has also released further guidance about this.
If you are concerned about being HIPAA compliant and are seeking a more permanent telehealth solution, note that you will need to sign a Business Associate Agreement (BAA) with any software company you partner with. Not all videoconferencing companies will do so (for instance Apple's FaceTime will not, and thus is not HIPAA-compliant for the long-term). Based on anecdotal member feedback provided to APA, members have signed BAA's with, and are using Zoom for Healthcare, MegaMeeting Telemedicine, VSee, and doxy.me. Again, while APA is not endorsing nor explicitly recommending these solutions for your practice, they are a good place to start when researching what will work for your own practice needs.
Licensure Requirements
As of March 31, 2020, CMS is temporarily waiving requirements that out-of-state practitioners be licensed in the state where they are providing services when they are licensed in another state. CMS will waive the physician or non-physician practitioner licensing requirements when the following four conditions are met. The provider:
- must be enrolled as such in the Medicare program;
- must possess a valid license to practice in the state which relates to his or her Medicare enrollment (e.g., if enrolled in Medicare for state X, must have a license for state X);
- is furnishing services – whether in person or via telehealth – in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and
- is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area.*
- In addition to the statutory limitations that to the above, this waiver, when granted by CMS, does not have the effect of waiving state or local licensure requirements or any requirement specified by the state or a local government as a condition for waiving its licensure requirements. Those requirements would continue to apply unless waived by the state. Therefore, in order for the physician or non-physician practitioner to see Medicare patients via telehealth under the conditions described above, the state also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home state.
With respect to commercial payers, in general, physicians providing telepsychiatry services will need a license in the state in which the patient is located at the time services are provided. Note that many governors are declaring states of emergency and different State Boards of Medicine are responding to the crisis by changing their rules on an individual basis. APA is actively monitoring state-level activities and posting updates on state policy here.
But What about Telephone Calls?
Reimbursement issue aside, there is wide variability of interpretations about whether standalone phone calls are HIPAA-compliant. All of this, of course, depends on how the telephone system you're using, whether a traditional landline, mobile device, Voice over Internet Protocol (VoIP—i.e., a phone that uses the internet to make calls), or the use of a third party phone call system embedded in a mobile application, handles Protected Health Information (PHI) under HIPAA. There is no quick and easy answer for this question. Note that the emergency declaration appears only to apply to true telehealth encounters (e.g., live video/audio teleconferencing) and not phone calls without video.
First, CMS is also allowing for patient-initiated "brief check-ins" via telephone, which last around 5 – 10 minutes. Again, for additional information on what constitutes one of these check-ins, see CMS' Fact Sheet around COVID and telehealth, as well as the recent press release on additional flexibility around brief check-ins.
On April 30, 2020 (retroactive to March 1, 2020), CMS issued a new ruling permitting audio only telephone care for the following psychiatry codes: 90785, 90791, 90792, 90832, 90833, 90834, 90836, 90837, 90838, 90839, 90840, 90845, 90846, 90847, 90853. CMS also announced they will be increasing payments for audio-only telephone visits (99441, 99442, 99443) between Medicare beneficiaries and their physicians to match payments for similar office and outpatient visits. This would increase payments for these services from the current range of about $14-$41 to the higher range about $46-$110, and the payments are retroactive to March 1, 2020.
Since the add-on psychotherapy codes, 90833, 90836, and 90838 have been permitted for just audio, we believe CMS is recognizing it will be acceptable to bill for an E/M with one of these codes even when only audio is available using the point of service for where the encounter would have taken place were it not for the public health emergency, and the modifier 95 is to be used to indicate the care was provided via telemedicine. We are waiting for confirmation from CMS that this is the case and will update this page as needed.
Also, note that on 03/31/2020, CMS ADDED group psychotherapy and psychological testing to the list of codes that are FOR NOW approved for telehealth (audio and video).
Electronic Prescribing of Controlled Substances via Telemedicine
The Ryan Haight Act requires that a provider conduct an initial, in-person examination of a patient—thus establishing a doctor-patient relationship—before electronically prescribing a controlled substance. As of March 17, 2020, the DEA has indicated that this requirement has been suspended for the duration of the emergency declaration. Further, whereas previously you would have needed a DEA license in the state where the patient is located in order to electronically prescribe a controlled substance, this has been waived for the duration of the public health emergency. Prescribers will still need to comply with applicable state law where the patient is located when EPCS, as well as use full telehealth (paired audio-video) capabilities to conduct an assessment prior to doing so:
For several of these categories, the CSA specifically requires a practitioner to have a DEA registration in the state in which the patient is located. See, e.g., id. 802(54)(A), (B). But the practice of telemedicine during a public health emergency pursuant to 21 U.S.C. 802(54)(D) does not include this requirement. On March 16, 2020, the Secretary of HHS, with concurrence of the Acting DEA Administrator, designated that the telemedicine allowance under section 802(54)(D) applies to all schedule II-V controlled substances in all areas of the United States. Thus, in light of this designation and subject the conditions of this letter's temporary exception, DEA-registered practitioners may prescribe controlled substances to patients in states in which they are not registered with DEA via telemedicine.
Thus, providers will still need to have a complete telemedicine encounter for the duration of this waiver (despite Ryan Haight having been suspended regarding the in-person initial assessment for the duration of the public health emergency). Only providers with a DATA-2000 waiver + a DEA license can dispense buprenorphine via a telephone-only encounter for Medication Assistant Treatment (MAT).
Contacting Third Party Payers and Medicaid Directors
Given the increased need for telemedicine and telephone encounters with patients, APA would like to help you to advocate for these services to be covered by private insurance and Medicaid for when patients are unable to come into the office for their regular appointments. You can use this sample letter to send to the private insurers and Medicaid Directors that provide coverage to your patients. Please let APA know if you receive a response.
APA is tracking changes in commercial payers' policies around telehealth, which you can access here.
If you have additional questions about any of the above issues, APA members may contact the Practice Management Help Line.
Psychiatry Unbound Podcast: Telepsychiatry and Health Technologies
In this May 18, 2019 episode of APA Publishing's Psychiatry Unbound podcast, Laura Roberts, M.D. discusses telepsychiatry with Peter Yellowlees, MBBS, M.D., and Jay H. Shore, M.D., M.P.H.