Let's Talk Compliance Recap: The Telemedicine Cliff

10 November 2021 Health Care Law Today Blog
Author(s): Thomas B. Ferrante Jana L. Kolarik

In the October 8, 2021 session of our Let’s Talk Compliance series, Foley & Lardner’s T.J. Ferrante and PYA’s Valerie Rock shared their expertise and answered questions regarding telemedicine.  One area of focus was the “telemedicine cliff” - unless Congress acts, the telemedicine requirements will return to their prior restrictions after the Public Health Emergency (PHE). With the uncertainty of what the Federal and State requirements will be after the PHE, and the uncertainty as to when the PHE will conclude, closely monitoring guideline changes and developing a transition plan are key. A recording of the event is available here.

Not long after our event, on October 15 the HHS Secretary extended the PHE through January 16, 2022, the sixth renewal since the PHE was first declared in January 2020. The following includes key takeaways and resources to monitor:

  • Many of the flexibilities allowing Medicare reimbursement are only temporary and will sunset once the PHE ends. Congress must make a change legislatively to continue flexibilities for removing geographic restrictions; allowing the location of the patient (including the patient’s home) to be an originating site; and allowing Federally Qualified Health Centers, Rural Health Clinics, and Critical Access Hospitals to furnish telehealth and be fairly reimbursed.
  • Flexibilities from other federal agencies such as the Office of Civil Rights (OCR) relating to HIPAA and technology/security requirements and the Drug Enforcement Agency (DEA) relating to controlled substance prescribing requirements will expire after the PHE ends.
  • At the state level, many states temporarily suspended medical licensing requirements, allowing practitioners licensed in other states to deliver telehealth services across state lines. As these temporary waivers begin to sunset, health care organizations must ensure they are once again prepared to comply with these state-specific rules.
  • Commercial payers will each have their own requirements and will be bound by state requirements through laws, rules, and medical board policies.
  • Identifying the services which will benefit patients most by expanding access to care and reducing barriers to routine monitoring and treatment, , will increase adoption and success of telemedicine programs. Ensure those services are not negatively impacted by limitations of the physical exam.
  • Billing and documentation requirements are currently included in Medicare FAQs, Interim Final Rules; however, keep an eye on enforcement to interpret additional requirements, including Medicaid Guidance See e.g., OIG Report.

Additional Resources:

SSA, Section 1834(m)

Commercial Payer and State Policies Tool

Medicare recognition for interstate license compact

AMA Telehealth guidance



Medicare billing and documentation requirements

OIG Fraud and Abuse Monitoring, SC Medicaid audit

We are deep in the planning stages of our next annual Let’s [Virtually] Talk Compliance event in January 2022. More details will come soon, but in the meantime, be sure to also check out the following Let’s Talk Compliance additional resources:

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.