A change in law related to the use of telemedicine has prompted some concern over when the technology can be used. However, hospitals and physicians are safe to continue with telehealth services under the COVID-19 public health emergency.

As hospitals rapidly expanded the use of telemedicine in the past year, Section 123 of the Consolidated Appropriations Act of 2021, enacted in December, gained attention. It includes a statement that, at first glance, seems to restrict who can receive telehealth services for mental health:

“Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder unless such physician or practitioner furnishes an item or service in person, without the use of telehealth ...”1

The new law states that a practitioner must see the patient in person in the six months before the telehealth service. That caused some hospital leaders to think the law means telehealth can no longer be used for mental health services without seeing the patient in person first.

The law actually should not curtail the way the hospitals currently use telehealth for mental health services, says Allison Cohen, JD, shareholder with Baker Donelson in Washington, DC. The new requirement will not apply until after the pandemic public health emergency.

“This is not directly applicable to how practitioners are furnishing services during the public health emergency because the originating site restrictions have been lifted until the public health emergency terminates. In response to the COVID-19 pandemic, Congress passed the Coronavirus Preparedness and Response Supplemental Appropriations Act that first authorized removal of some of the statutory restrictions on telemedicine, most importantly temporarily lifting the originating site restrictions on where the beneficiary must be located when receiving telehealth services,” Cohen explains.2 “This temporarily allows Medicare to cover telehealth services provided to patients in all areas of the country and in all settings, including their homes, for the duration of the COVID-19 public health emergency.”

Additionally, the Consolidated Appropriations Act explicitly states the originating site geographic requirements do not apply “to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder” starting “on or after the first day after the end of the emergency period.”1

Section 123 also expands Medicare payment for certain mental health services furnished through telehealth. It eliminates statutory geographic originating site requirements that generally require the beneficiary who is receiving the telehealth services to be in certain clinical sites, geographically located in a county outside a metropolitan statistical area, or in a rural Health Professional Shortage Area when receiving the services. Specifically, the legislation authorizes Medicare payment for telehealth services provided for purposes of diagnosis, evaluation, or treatment of a mental health disorder, even if patients are in urban areas or their homes. This, as long as the patient has received an in-person item or service reimbursable by Medicare from the physician or practitioner within six months before receiving the telehealth service.

“This means that Medicare will cover telehealth behavioral health services furnished to established patients of a qualified mental health practitioner without the limitations imposed by statutory geographic originating site requirements even after the waivers tied to the COVID-19 public health emergency are lifted,” Cohen says.

Importantly, the changes in the Consolidated Appropriations Act, including the established patient requirement that is a prerequisite to furnish mental health services via telehealth to Medicare beneficiaries outside what are typically Medicare-eligible originating sites, do not take effect until after the COVID-19 public health emergency ends.

“Given that the requirement is inapplicable until after the public health emergency, practitioners who are not currently adhering to it would not be knowingly submitting false claims as long as they otherwise adhere to the Medicare requirements that remain while the COVID-19 waivers and regulatory flexibilities are still in place,” Cohen says.


  1. The Consolidated Appropriations Act of 2021.
  2. Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020.


  • Allison Cohen, JD, Shareholder, Baker Donelson, Washington, DC. Phone: (202) 508-3429. Email: acohen@bakerdonelson.com.