The CMS telehealth “cliff” approaches

Martin Merritt, JD

Barring further action from Congress, CMS temporary waivers for telehealth coverage expire on September 30, at which time “we risk a telehealth ‘cliff’ that would negatively impact patient access in all communities,” according to a Fact Sheet by the American Hospital Association.

The AMA Fact Sheet also provides an excellent summary of what telehealth visits were covered prior to the COVID-19 Pandemic and how the Pandemic waivers affected telehealth coverage, based upon factors such as “geographic and originating sites” (where does the patient need to be located during a telehealth visit); whether real-time “audio-only” (as opposed to audio and visual telehealth) were covered; and extensions of “eligible provider types” (what kind of providers could perform telehealth services).

In order to understand what is going on here, we might borrow a psychological principle attributed to Carl Jung,"If you can't determine the motive, look at the outcome and infer intent" which suggests that an particular actions' consequences reveal underlying motivations even when those motivations aren't explicit. By observing the results or aftermath of an action, we can deduce the purpose or intent behind it.

Viewed in this light, the fact the “cliff” (and falling off it) would “negatively impact patient access in all communities” isn’t a “bug” in the eyes of CMS, but a “feature.” Limiting access also limits expenditures.

As a health lawyer, I do not often find myself sympathizing with CMS, in fact, I spend most of my time battling with them. But “how are we going to pay for this” is a question I often ask in my own household and answering this question is the primary job of CMS in administering Medicare and Medicaid programs. At least when it comes to stretching healthcare dollars to keep up with benefits promised by elected officials.

It remains to be seen whether Congress will extend the current deadline or allow telehealth rules to revert back to the way things were before the pandemic.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.