New Telehealth Executive Order & Rules: What are the Long-Term Implications?

Wednesday, September 9, 2020

Since the COVID-19 pandemic began in the United States, interest in and use of telehealth services has skyrocketed. The federal government has embraced the value of telehealth during this time, expanding the accessibility of telehealth for Medicare beneficiaries through the CARES Act.

On August 3, the White House issued an Executive Order (EO) that aims to extend some of these expanded telehealth benefits for Medicare beneficiaries past the public health emergency. On the same day, the Centers for Medicare and Medicaid Services (CMS) issued proposed changes to the Medicare Physician Fee Schedule for Calendar Year 2021. Together, these measures could change the landscape of Medicare telehealth benefits. However, it remains to be seen whether these benefits will last—both in policy and in practice—after the pandemic subsides.

Executive Order Gives CMS 60 Days to Permanently Extend Telehealth Benefits for Medicare Beneficiaries 

The EO calls on the Secretary of the U.S. Department of Health and Human Services (HHS) to review the temporary measures put in place during the COVID-19 public health emergency and propose a CMS rule to extend the expanded telehealth benefits for Medicare beneficiaries. All of this must take place within 60 days of the EO (by October 2, 2020).

The current, temporarily expanded telehealth measures increase the number and types of services clinicians can provide via telehealth for the following patient care areas: evaluation and management, critical care, home visits, group psychotherapy, psychological and neuropsychological testing, physical and occupational therapy, and radiation treatment management.

The services are divided into two categories of reimbursement codes: Category 1 services are similar to existing Medicare-approved telehealth services (e.g., professional consultations, office visits, and office psychiatry services) that are already approved for telehealth delivery. Category 2 services are not similar to already-approved telehealth services; CMS reviews requests for these services to ensure they can be accurately described by corresponding Current Procedural Terminology (CPT) codes and provide a clinical benefit to the patient when delivered virtually.

In addition, under the CARES Act and the 1135 Waiver authority enacted in March, CMS made two key changes:

  1. Waived video requirements
    This waiver allows providers to use audio-only equipment for telephone evaluation and management services, behavioral health counseling, and educational services. Granting use of audio-only equipment improves accessibility to telehealth by allowing those without internet-enabled devices to take advantage of telehealth services.
  2. Expanded practitioner types
    CMS increased the types of practitioners who may bill for distant site telehealth services, including physical and occupational therapists and speech language pathologists. Allowing practitioners to provide these services increases access to care for patients with limited transportation options and can lead to greater uptake of telehealth in the community.

CMS also modified the process to expand services included in the Medicare telehealth services list. For example:

  • Clinicians can now check in with new patients via telephone or exchange of video/image information; they can also remotely monitor patients for acute and chronic conditions. Previously, clinicians could only conduct virtual check-ins with established patients.
  • There is no limitation on the number of subsequent inpatient and skilled nursing facility visits that can be provided via telehealth; critical care consults can also be provided by telehealth more than once per day.
  • Physicians and other practitioners can now provide supervision virtually for services that require direct supervision.

Under CMS’ temporary measures, Medicare payment for telephone evaluation and management visits is equivalent to that of in-person office/outpatient visits with established patients.

These measures build on a growing telehealth trend that existed pre-COVID, especially in the realm of mental health and substance abuse disorders. For example, in 2019, Medicare began paying for telehealth services (including virtual check-ins and e-visits) at home and at renal dialysis facilities, including for acute stroke and substance use disorder (or a co-occurring mental health disorder). Previously, Medicare could only pay for virtual care in specific rural areas or if the patient traveled to a local healthcare facility.



These temporary policy changes have led to an increase in Medicare fee-for-service (FFS) primary care visits provided via telehealth from less than 1% (0.1%) of visits in February to 43.5% in mid-April. While this increase was reflected in both rural and urban counties, growth was higher in urban areas (above 45% in April for urban counties, compared with approximately 25% for rural counties). As of early June, telehealth use represented 20% of total Medicare FFS primary care visits, still well above where it had been in February. However, there has been a steady decline in the use of telehealth since April.


Proposed Changes in the Medicare Physician Fee Schedule for Calendar Year 2021 Extend Some Benefits, Remove Others

In its proposed 2021 Physician Fee Schedule, CMS revealed it plans to cut 74 out of 83 temporary codes created to cover telehealth services during the pandemic. Among the codes CMS proposes to remove are those allowing for payment for audio-only telephone evaluation and management services. This provision, in particular, helps make telehealth more accessible for vulnerable populations.

CMS is seeking public comment from providers, technology companies, and advocates on whether it should develop similar temporary codes (to remain in effect until one year or some other period after the end of the public health emergency) or permanent codes for virtual check-ins of longer duration and higher payment value.

The Schedule will keep several telehealth codes from before the pandemic (currently in Category 1) and eliminate the 74 codes currently in Category 2. CMS will add 13 codes that were initiated for the public health emergency in a new temporary category (Category 3). CMS will decide at the end of the calendar year in which the public health emergency ends whether to make the codes permanent, after stakeholders submit clinical studies and peer reviewed articles that confirm that telehealth is as effective in improving patient outcomes as in-person visits. The codes added to Categories 1 and 3 are similar to the temporary codes added during the public health emergency. 


The proposed 2021 MPFS includes several coverage changes, including removing 74 of 83 temporary codes, and adding a new temporary category (Category 3). CMS aims to increase telehealth reimbursement in response to telehealth use during the pandemic.

In addition to these changes, CMS will include new primary care evaluation and management CPT and Healthcare Common Procedure Coding System (HCPCS) codes in the methodology used to assign Medicare beneficiaries to accountable care organizations (ACOs).

This comment period, which ends October 5, will provide stakeholders the chance to weigh in on which temporary telehealth benefits will provide value—to patients, providers, and payers—after the pandemic subsides.

Will the Trump Administration’s Efforts During COVID-19 Ensure Telehealth Sustainability in Coming Decades? Stakeholders Weigh In

New Medicare Payment Models May be Key to Telehealth Sustainability, But Must Undergo a Trial Phase

A primary concern in the sustainability of telehealth is payment. Some argue that telehealth visits should be reimbursed at the same level as in-person visits, while others argue that new models are needed, especially for Medicare and Medicaid.

On August 11, the Trump administration announced a new model to allow for innovative payment mechanisms for rural providers. The Community Health Access and Rural Access (CHART) Model aims to jumpstart rural health care quality, access, and finances, and gives providers the option to expand telehealth to allow the beneficiary’s place of residence to be an originating site, among other new provisions for flexibility.

The CHART Model offers providers a choice between two tracks: the Community Transformation Track, which will provide up to 15 rural communities with seed money to invest in care transformation, and the ACO Transformation Track, which builds on the ACO Investment Model (AIM), and will enable up to 20 rural ACOs to enter into two-sided risk arrangements as part of the Medicare Shared Savings Program (MSSP) and to use all available MSSP waivers. Depending on the track providers choose, the earliest they could start participating in the CHART Model (if selected by CMS) is summer 2021.

The National Association of Accountable Care Organizations’ president and CEO, Clif Gaus, weighed in on NAACO’s perspectives on the potential negative effects of proposed payment changes, including those in the proposed 2021 Medicare Physician Fee Schedule, on ACOs, including changes to assessments and measures.

Improved Telehealth Access Provided by Temporary Benefits Set to End in Conjunction with the Public Health Emergency

Another major consideration for telehealth sustainability is access, namely to reliable internet and telephone service. Access to broadband, and an ongoing partnership with the Federal Communications Commission (FCC) as introduced in the Trump Administration’s EO, should help beneficiaries access virtual care in the future. The EO directs the FCC and HHS to form a task force that will work to improve internet connectivity in rural communities that can support telehealth delivery.

Relaxing platform and location restrictions (i.e., allowing telehealth visits from home) can help with accessibility and familiarity with telehealth, and therefore lead to greater uptake, but could create privacy risks. However, pending comments on the 2021 Physician Fee Schedule, these relaxed restrictions—allowance of audio-only communication for some telehealth services and the lifting of geographic and site service restrictions—are set to expire at the end of the public health emergency.

Audio-only communication is a useful, if not crucial, tool for low-income and older adult populations, and those who lack access to broadband. John League, Senior Consultant at Advisory Board, noted that CMS chose not to make states increase audio-only benefits over the summer.

New York added audio-only visits as approved telehealth services for participants in the state's Medicaid and Children's Health Insurance Program," said League. "And in July, New Hampshire included audio-only visits in its permanent extension of emergency telehealth measures. Both states pointed to a lack of access to video technology among underserved populations as motivation for keeping audio-only telehealth. CMS is soliciting input on adding audio-only codes for visits that are more extensive than its existing virtual check-ins, and whether such services should be extended for up to a year past the end of the public health emergency or on a permanent basis."

During IMPAQ Health’s July 16 webinar, Bridging the Digital Divide: Solutions for Telehealth Access & Equity, speaker Dr. Patrice Walker, Chief Medical Officer at Navicent Health, discussed the critical nature of internet access for the success of her organization’s telehealth pilot program and the health of their patients—especially those without audio-only visit benefits.

“When it comes to rural patients, if we are going to expand the program at all, it really depends on broadband access,” said Dr. Walker. “It’s one thing to have a device, it’s one thing to know how to use that device, but if you don’t have that connectivity, then that patient is going to struggle.”

Targeting rural areas with these improvements could help with telehealth sustainability, adoption, and use on the national scale because of other rural-specific challenges, such as transportation and distance from a disproportionately small number of providers.

The Alliance for Connected Care’s executive director, Krista Drobac, also takes the perspective that temporary and selective action will not be sufficient.

“The vast majority of barriers to telehealth are statutory,” says Drobac. “We need Congress to take clear, permanent action to expand access to telehealth for seniors, and to allow them to use it in any location. Without these statutory barriers addressed permanently, CMS cannot take the thoughtful, measured steps needed to allow the medical community to plan for, and carefully implement long-term telehealth strategies to benefit seniors.”

Navigating the Future of Telehealth amid Uncertainty

CMS, states, payers, and providers have all made significant progress to facilitate telehealth access and use since the start of the public health emergency, but it remains unclear how much of this momentum will be sustainable post-COVID-19.

The outcome of the EO is malleable and could be affected by a change in administration this fall. The 2021 Physician Fee Schedule proposed rule is open for public comment until October 5 and will have significant effects on telehealth sustainability, as many private payers are likely to follow Medicare’s lead. However, even the expansion in the Physician Fee Schedule—the temporary codes in Category 3—are not permanent.

Long-lasting, intentional change will not take hold unless experts and stakeholders weigh in on their experiences, good and bad, during the public health emergency, and speak out on how telehealth care can be used to facilitate a more efficient and equitable health care system.

IMPAQ experts are closely monitoring telehealth advances and challenges and are prepared to address the changing needs of federal and state Exchange stakeholders with our expertise in telemedicine, health insurance policy, and value-based care. IMPAQ is committed to analyzing all emerging policy issues in the context of health equity and social justice.

To speak with IMPAQ experts about telehealth expansion, contact us. To receive future posts explaining health care rules and regulations, subscribe to IMPAQ Health News.


Leah Dillard, Health Policy Analyst, IMPAQ Health
Ms. Dillard supports IMPAQ’s health insurance marketplace contract by conducting policy reviews, stakeholder outreach, and technical assistance. Ms. Dillard also assists with IMPAQ’s business development efforts, including those related to telehealth and interoperability.


Rachel Shapiro, MPP, Senior Researcher, AIR
Ms. Shapiro conducts qualitative research focusing on a range of health care delivery and payment reforms that aim to achieve better quality of care, improve population health, and lower costs of care. She has expertise in a range of areas, including primary care redesign, practice transformation, and health information technology.


Kevin Van Dyke, MPP, Managing Director, IMPAQ Health 
Mr. Van Dyke is an expert in health insurance marketplaces, health care quality and patient safety, health information technology, Medicare and Medicaid payment policies, and hospitals and health systems. Mr. Van Dyke has served as a health insurance marketplace and health care quality SME and serves as a project director and business development lead for several Health Division projects.