Senate Finance Releases Discussion Draft of Tele-Mental Health Legislation
  • The discussion draft would remove in-person visit requirements for Medicare beneficiaries receiving telehealth services and permit audio-only visits. 
  • As drafted, the bill would direct CMS to issue guidance on interstate licensing requirements for telehealth services under both Medicare and Medicaid. 
  • The legislation would encourage states to provide school-based behavioral health services for CHIP beneficiaries.  
Today, a bipartisan group of senators on the Finance Committee unveiled a discussion draft (press release) of tele-mental health legislation as a part of the Committee’s broader legislative effort to improve mental health care for Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) beneficiaries. Policy proposals within the discussion draft pertain to: (1) removing Medicare’s in-person visit requirement for tele-mental health services; (2) promoting benefit transparency for mental health services provided through telehealth; (3) permitting audio-only mental health coverage via Medicare under certain circumstances; (4) requiring Medicare and Medicaid to promote and support provider use of telehealth; and (5) incentivizing states to utilize the CHIP to establish local behavioral health services in schools, including through telehealth, among other items.  

  • Background. This discussion draft serves as the first glimpse at legislative text on this issue since the Committee announced its mental health care initiative during in February of 2022. Earlier this year, the Finance Committee identified five areas in which it intends to focus on with regard to mental health care, including: (1) the health care workforce; (2) integration of care; (3) mental health parity; (4) telehealth; and (5) services for youth. President Joe Biden has included addressing mental health and addiction as two of the four pillars of the Unity Agenda he outlined in his 2022 State of the Union address (TRP summary), and mental and behavioral health have been at the forefront of congressional committee priorities as of late with ten hearings dedicated to the subject in 2022 alone (TRP tracker). 

The bill stipulates that Medicare beneficiaries would be able to receive audio-only tele-mental health services and beneficiaries would be allowed to initiate tele-mental health visits without prerequisite and sequential in-person visits. Additionally, services furnished through telehealth would be identified by a required claims or code modifier to be determined by the Department of Health and Human Services (HHS). Notably, the bill directs the Centers for Medicare and Medicaid Services (CMS) to issue guidance surrounding interstate licensing requirements for telehealth services under both Medicare and Medicaid. For Medicaid and CHIP enrollees, HHS would be directed to provide states with technical assistance and guidance to improve telehealth adoption. It also aims to incentivize the uptake of school-based mental health services — for in-person and telehealth modalities — for CHIP beneficiaries. Under the terms of the legislation, states would be allowed to note which plans offer telehealth services within a state’s provider directory.  

  • What’s Next? As stated in the accompanying press release, other discussion drafts may be released prior to a committee markup to be held at a later date. Once a draft bill is marked up in the Finance Committee, it is expected to be formally introduced as amended into a single legislative package. Additionally, the bill’s authors emphasized their intent to fully pay for the package through “bipartisan, consensus-driven" offsets, though such offsets are unknown at this time.  

Key provisions within the legislation include: 

Medicare — Title A of this legislation includes provisions to expand tele-mental health policies for Medicare beneficiaries.

  • General Provisions — Today’s discussion draft strikes SSA Section 1834(m)(7)(B)(i) of the SSA — which codified the in-person visit requirement for telehealth services — and replaces this section with updated language that effectively removes this requirement and instead simply includes a certification requirement. Specifically, the amended language outlines payment requirements for the furnishing of telehealth services for mental health and substance use disorder (SUD), including eligibility and timeliness requirements.* Additionally, it stipulates that payments may not be made for behavioral health assessment and intervention services on or after one year of this bill’s passage, unless the provider’s claim notes that: (1) the beneficiary consents to telehealth use; (2) the telehealth modality is suitable for the beneficiary; (3) the provider could also provide an in-person service within a reasonable period of time from the telehealth visits or refer the patient to another provider who can meet this requirement; and (4) that that telehealth service was coordinated with the beneficiary’s primary care provider. 
  • *This provision has been verified by Senate Finance Committee staff by Thorn Run Partners.  

  • Coverage of Audio-Only Mental Health Services — Under the bill, audio-only telehealth services would continue to be covered indefinitely after the 151-day period beginning on the first day after the end of the COVID-19 public health emergency (PHE). Among other safeguards stipulated in the bill text, HHS would be obligated to periodically update coverage of such audio-only telehealth services to ensure that it is “reasonable and necessary.” Additionally, the National Academy of Medicine would be required to conduct and submit a report to Congress on specified information pertaining to mental health services furnished through audio-only telehealth within five years of enactment of the bill.  

  • Rural Health Clinics and Federally Qualified Health Centers —With regard to mental health visits furnished by RHC and FQHC, the bill would amend Sections 1834(y) and 1834(o)(4) of the SSA to remove direct applicability to hospice patients for payments for mental health services furnished by such entities, thus encapsulating all telehealth services rendered by RHC and FQHC as covered by Medicare. Additionally, this provision eliminates the in-person mental health visit requirement to receive telehealth services at RHC and FQHC and stipulates that a claim modifier must be used for an RHC or FQHC to receive payment for such services beginning one year after enactment of the bill.  

  • Health Behavior Assessment and Intervention Services — The bill would allow for the diagnosis, evaluation, and treatment of SUD and mental health services through telehealth without geographic site restrictions starting one year after the enactment of this legislation. 

  • Benefit Transparency — Under the bill, HHS would be required to develop and make publicly available a webpage — to be contained within the website — that provides specified information and includes the search function described below in an “easily understandable” format.  
  • Required Information — Specifically, the bill stipulates that such information surrounding Medicare beneficiaries’ ability to receive tele-mental health services should include that:  
  • Beneficiaries can receive covered services for diagnosis, evaluation, or treatment for mental health or SUD through telehealth, notwithstanding location. 
  • Beneficiaries can obtain covered services in an audio-only format for mental health and SUD services. 
  • Beneficiaries can initiate telehealth visits for mental health and SUD services without the requirement to first have an in-person visit with their health care provider and can continue such telehealth visits without periodically having an in-person visit with their health care provider. 
  • Utilizing telehealth services does not preclude beneficiaries from receiving in-person services in the future. 

  • Search Function — Under the bill, the webpage would be required to include a search function to allow coinsurance amounts for mental health and SUD services under Part B to be displayed based on geographic location. The legislation also specifies disclaimers for such information that must be publicly displayed.   

  • Tele-Mental Health Public Awareness Campaigns — The legislation would require that HHS promulgate public awareness campaigns to ensure that beneficiaries are aware of telehealth benefits.  

  • Additional Requirements — “The Medicare and You Handbook,” as well as Medicare Advantage (MA) organization websites, would also be required to provide information on the covered mental health and SUD services available through telehealth in a similar manner as described in the section outlining webpage requirements for Medicare. 

  • Utilization and Program Integrity — In an effort to identify areas of concern surrounding program monitoring for, and utilization of, mental health services furnished by telehealth, the legislation provides certain requirements for HHS as a means to address inconsistencies in this regard. Specifically, the bill stipulates that, no later than one year after enactment, the Secretary of HHS would be required to review claims data in order to identify physicians and/ or practitioners whose submitted number of claims per beneficiary “greatly exceeds” the average number of claims per beneficiary in this space.  

  • Claims Modifier — Under the bill, claims for mental health services furnished through telehealth by auxiliary personnel and billed incident to a physician or practitioner’s professional services would be required to include a code or modifier, to be determined by the Secretary of HHS. The legislation stipulates that this requirement must be in place no later than one year after enactment. 
  • Requirements for Best Practices — The legislation would require that, within one year of enactment, HHS issue guidance detailing best practices for collaboration and integration efforts. Specifically, the guidance would be mandated to include best practices on:  
  • Ways in which providers can work jointly with interpreters to furnish behavioral services through video-based telehealth as well as audio-only telehealth when video-based telehealth is unavailable or unfeasible;  
  • Integrating video platforms that allow for multi-person video calls for such services;  
  • Delivering patient education on the use of telehealth services, particularly for patients with limited English proficiency; and 
  • Providing all patient communications in multiple languages, including prescription information and text message appointment reminders. 

  • Reports — The discussion draft would require reports to Congress relative to the utilization of telehealth services as well as details surrounding mobile applications used to provide such services. 
  • General — The bill provides that, within 18 months of enactment, the Secretary of HHS would be mandated to submit a report to Congress on: (1) utilization of tele-mental health services; (2) utilization of SUD services furnished through telehealth and whether beneficiaries have been affected by the delay in program establishment guidance directed by Congress under the SUPPORT for Patients and Communities Act; (3) recommendations for fraud or abuse prevention; (4) plans to bolster the utilization of, and access to, such services for Medicare, Medicaid, and CHIP beneficiaries; (5) changes in utilization of such services in rural, underserved, and minority communities since the declaration of the COVID–19 PHE; (6) impact of telehealth on cost, access, and quality; (7) barriers of, and proposed solutions to, provider use of telehealth; and (8) frequency of services furnished where a patient and provider are located in different states.  

  • Mobile Applications — Under the bill, the Comptroller General would be required to submit to Congress a report on mobile applications used to administer behavioral health services. This report would include information on the prevalence of such applications, data and security compliance, utilization rates by clinically-supported practices, prevalence of insurance coverage, and expected long-term use of such applications for behavioral health services.  

  • Interstate Licensure Requirements — The discussion draft stipulates that CMS must provide information regarding interstate licensure requirements for delivering telehealth services under the Medicare and Medicaid programs. Specifically, such information shall include “regular” updates to guidance as well as supporting details that clarify the extent to which licenses obtained through the interstate license compact pathway meet Federal requirements to deliver behavioral health services from telehealth across state lines.  

  • Accessibility — The bill would require that HHS provide “regular” updates to guidance documents in order to facilitate the accessibility of such services through telehealth for the visually and hearing impaired.  

Medicaid and CHIP — Title B of this legislation includes Medicaid and CHIP provisions to enhance tele-mental health flexibilities and encourage state adoption of telehealth policies for beneficiaries.  

  • Guidance to States — Section 11 of this bill would require HHS to provide states with guidance and technical assistance, within 18 months of enactment, with the goal of improving Medicaid and CHIP beneficiaries’ access to telehealth services. Specifically, this legislation would require such guidance and assistance to address:  
  • State flexibilities that would not require state approval or waivers;
  • Best practices for billing; 
  • Mechanisms to integrate value-based care (VBC) models; 
  • Lessons learned from states that used waivers to test telehealth flexibilities during the COVID-19 PHE; 
  • Providing “culturally competent” care; 
  • Training and providing recourses to patients and providers, including the utilization of interpreters and multi-lingual resources; 
  • Integrating the use of existing video platforms; 
  • Best practices to deliver Medicaid and CHIP services in schools, especially for mental health and SUD care; 
  • Strategies to evaluate the quality, cost, and efficacy of telehealth; and 
  • Best practices for educating beneficiaries on the availability of telehealth, including audio-only visits, the patient’s home as an originating site, and in-person visit requirements.  

  • State Use Incentivization — Under current law, policies outlined in Section 2105(a)(1)(D) of the SSA — regarding the payment for children’s health assistance specifically for low-income children, expenditures for children’s health improvement, outreach expenditures, translation and interpretation services, and other “reasonable” plan costs — must be capped at ten percent of all CHIP payments to states. This legislation proposes to exclude school-based behavioral health services and behavioral health services furnished through telehealth from this ten percent threshold. The intention here is to encourage states to provide these school-based services to CHIP beneficiaries. However, spending on school-based behavioral health care would be subject to a 15 percent cap on all CHIP payments to states. 

  • Telehealth in Provider Directories — State plans for fee-for-service (FFS) medical assistance on a primary care case management system must publish a physician directory on the state website. Under this legislation, states have the option to note if providers in the directory offer their services through telehealth.