In-person Requirement for Medicare telemental care drawing pushback

July 26, 2021

Good news for those of us who believe the in-person visit within the last six months restriction that was built into the December  Medicare telehealth coverage spending bill is bad public policy.  The requirement, scheduled to take effect 6 months after the end of the (federal) public health emergency, could have a chilling effect on the ability of Medicare clients to access the mental health care they need and deserve.  In the days to come the NYS Council will continue to weigh in on this critical issue, pressing for revocation of a requirement that we believe would disproportionately impact those with mental health conditions, and especially those in underserved communities.


In-person requirement for telemental care draws backlash from providers, advocates


Congress has made steps to improve Medicare’s telehealth coverage, but there are still restrictions that provider groups, advocates and lawmakers across the aisle argue will impede access to mental healthcare.

The $2.3 trillion government spending bill passed in December permanently allowed Medicare to cover mental health services delivered virtually but with a catch: beneficiaries must see the practitioner in person within six months before virtual treatment begins. Lawmakers added the requirement amid concern over potential Medicare fraud and waste. But some congressional aides say the restriction was added to bring down the cost of the bill, the biggest spending package passed in congressional history.

The requirement, which is expected to take effect next year, has puzzled and frustrated providers and advocates, who argue it has no clinical benefit, will deter patients from seeking care and make it difficult to expand access to mental healthcare in rural communities.Now there’s momentum in Congress to repeal the provision, which passed just six months ago and has not yet taken effect.

“If we have that requirement, I think we would miss a significant portion that really needs care,” said Dr. Shabana Khan, who specializes in child and adolescent psychiatry at NYU Langone and is a member of the American Psychiatric Association’s committee on telepsychiatry. “It’s about giving access to specialty care that we otherwise wouldn’t be able to provide in certain areas.”

Telehealth use surged during the pandemic when Medicare temporarily waived parts of the law that restricted payment for virtually-delivered care. This allowed Medicare beneficiaries across the country to receive virtual mental healthcare and other telehealth services in their homes.

The December spending bill made this change permanent for telemental health, a win for advocates and providers who have pushed Congress for years to update Medicare’s antiquated policies on coverage for virtual mental healthcare.

But it was a short-lived celebration once advocates learned about the in-person requirement, which they argue weakens the promise for expanding mental healthcare in rural and underserved communities.

“It’s a surefire way to ensure people who want to have access to telemedicine for mental health don’t get it through the Medicare program,” said Kyle Zebley, vice president of public policy at American Telemedicine Association, whose members include health systems, plans, and other groups like the American Hospital Association.

While telehealth utilization has leveled out after the initial surge in the early days of the pandemic, it’s still at levels 38 times higher than before COVID-19, according to McKinsey & Company.

And the need for mental healthcare has reached crisis levels.

About 30% of Americans reported symptoms of anxiety or depressive disorder in the past seven days, according to a CDC survey conducted between June 23 and July 5. That included 50% of adults aged 60 years and older.

Bipartisan bills introduced by Sens. Bill Cassidy (R-La.), Tina Smith (D-Minn.), Reps. Doris Matsui (D-Calif.) and Bill Johnson (R-Ohio) would remove the requirement stating that beneficiaries must see their mental health practitioner in person before beginning virtual care and subsequent periods afterward, which is to be determined by HHS.

“I feel very optimistic” it will pass,” Zebley said. “When I talk to members of Congress, there’s not many supportive of blanket, in-person requirements, that I can think of.”

That bill is supported by most of the authorities on mental health policy, including the American Psychiatric Association, American Psychological Association, American Medical Association, National Alliance on Mental Illness and several others.

Dozens of healthcare organizations including America’s Essential Hospitals (AEH) and the American Medical Association (AMA) signed on to a letter Monday urging Congress to eliminate the in-person restrictions, claiming it will exacerbate clinician shortages and worsen health inequities.

A GOP aide working on the issue said they’re hopeful the bill will pass, potentially through the end of year spending package, noting that the country is facing a mental health crisis. They also noted that after Congress passed the Support Act in 2018, Medicare covers telehealth treatment of substance use disorders with no in-person requirements.

A Democratic aide said it will likely be in the spending bill if there is a way to pay for it.

While both parties are generally supportive of extending access to telehealth after the public health emergency, when the waivers expire, they’ve also stressed the importance of doing so responsibly in a way that minimizes fraud and waste.

A House Ways & Means Committee aide told Modern Healthcare the in-person requirement was included in a bill marked up because of program integrity concerns.

A document obtained by Modern Healthcare and put together by the HHS Office of Inspector General (OIG) showed that between March 2020 and March 2021, more than 1,200 providers were flagged for potential fraud,filing 37% of claims paid by Medicare for cancer genetic tests, respiratory pathogen panels and durable medical equipment for patients they’d only seen through telehealth.

The Medicare Payment Advisory Commission (MedPAC) recommended that Medicare require in-person visits before providers can order durable medical equipment for patients through telehealth as a way to prevent waste, fraud and abuse but hadn’t made similar recommendations for telemental health.

But Michael Chernew, chair of MedPAC and a health economist at Harvard Medical School, said there needs to be a balance between expanding access and putting up barriers for fraud.

“We do have really serious needs to improve access to mental health services. That is true,” he said, representing his personal beliefs and not those of MedPAC. “It is also true that an in-person visit is some sort of a barrier… It might be a barrier, but there might be a need for a barrier.”

Sen. Ron Wyden (D-Ore.), chair of the Senate Finance Committee, which has jurisdiction over Medicare spending, told lawmakers at a hearing earlier this year he is open to revisiting the in-person requirement.

“I think you’re making very important points, with respect to these various issues requiring a previous appointment in order to get to telehealth. We’ve got to work through those issues and we’re going to do it in a bipartisan way,” he saidsaid.

The OIG document also showed that in that time period, 84% of Medicare beneficiaries who received telehealth services used a provider they had an established relationship with. However, that doesn’t include telehealth services for psychological testing and behavioral assessments “because a beneficiary is not expected to have an established relationship with a provider of any of those services,” the report reads. But 91% of beneficiaries using telehealth for psychotherapy did so through an established provider.

Still, experts note access to mental healthcare in the U.S. is lacking and many people aren’t getting treatment.

More than one-third of Americans live in areas where mental healthcare providers are in short supply, and that shortage is more acute in rural areas, according to the Kaiser Family Foundation. And 55% of counties don’t have a single practicing psychiatrist, according to the National Council for Mental Wellbeing.

Medicare’s new coverage of telemental health holds promise for expanding access to care in those communities, but the in-person requirement weakens that, advocates say.

It also shuts out virtual-only companies like Doctor and Demand, which saw behavioral health visits up 175% year over year in June for those 65 years and older.

“We will have to deny access to our Medicare beneficiaries starting in January 2022,” said Latoya Thomas, director of policy and government affairs at Doctor on Demand. “It gives patients zero choice and impedes on provider participation because if you do not have a brick and mortar practice in a community you cannot participate in delivering behavioral health and telemental health services to Medicare beneficiaries. It goes against the trend.”

There were already gaps in Medicare’s coverage of mental health. It doesn’t cover visits with licensed clinical social workers, who provide counseling and it’s not required to follow mental health parity laws.

“The reality is that for a lot of communities in this country, there aren’t mental health professionals for someone to go to,” said Jennifer Snow, director of public policy at the National Alliance on Mental Illness. “Even if you have the time and ability to get yourself there, especially in rural communities, the closest doctor you can see might be miles and miles away.”