UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

Office of Policy Planning 

Bureau of Competition 

Bureau of Economics 

Office of the General Counsel 

May 29, 2020 

Centers for Medicare & Medicaid Services 

Department of Health and Human Services 

P.O. Box 8016 

Baltimore, MD 20244-8016 

Attention: CMS-1744-IFC, Medicare and Medicaid Programs; Policy and 

Regulatory Revisions in Response to the COVID-19 Public Health 

Emergency 

The staffs of the Federal Trade Commission’s (“FTC”) Office of Policy Planning, Bureau 

of Economics, Bureau of Competition, and Office of the General Counsel1 (collectively, “FTC

staff”) appreciate the opportunity to respond to your request for comments on the Interim Final 

Rule with Comment Period entitled Medicare and Medicaid Programs; Policy and Regulatory 

Revisions in Response to the COVID-19 Public Health Emergency (“IFC”).2 The IFC aims to 

give flexibility, such as an increased ability to use telehealth, to individuals and entities that 

provide services to Medicare beneficiaries. The IFC therefore may enable these service providers 

to respond more effectively to the serious public health threats posed by the pandemic. 

Public and private reimbursement laws and policies frequently are cited as impeding the 

development and widespread use of telehealth services. By limiting entry of telehealth 

practitioners, overly restrictive reimbursement requirements may unnecessarily limit consumers’ 

access to care and choice of practitioner, especially in areas where there is a shortage of 

healthcare professionals and at times outside normal business hours. Reducing restrictions on 

Medicare reimbursement for telehealth services is especially important, not only to enhance the 

use of telehealth to care for Medicare beneficiaries, but also to encourage private payers to 

expand the use of telehealth. Reducing or eliminating restrictions on reimbursement of telehealth 

services could potentially enhance competition, improve access and quality, and decrease health 

care costs in both the public and private sectors. 

This comment supports the IFC’s provisions to reduce or eliminate restrictive Medicare 

payment requirements for telehealth and communication technology-based services (“CTBS”) 

during the current public health emergency,3 thus mitigating the exposure risk of patients and 

health care professionals. We also make a number of suggestions to further reduce restrictions 

that may be unnecessary for safety and quality. Finally, we suggest that CMS use the experience 

it gains from reimbursing a broader set of telehealth services, providers, and CTBS during the 

public health emergency to develop additional empirical evidence on the effects of these policies 

and to consider whether some of the regulatory revisions discussed in this letter should be made 

permanent.4 Doing so could benefit patients, practitioners, and the health care system as a whole. 

1 
 

 

I. Interest and Experience of the Federal Trade Commission 

The FTC is charged under the FTC Act with preventing unfair methods of competition 

and unfair or deceptive acts or practices in or affecting commerce.5 Competition is at the core of 

America’s economy,6 and vigorous competition among sellers in an open marketplace gives 

consumers the benefits of lower prices, higher quality products and services, and increased 

innovation. Because of the importance of health care competition to the economy and consumer 

welfare, anticompetitive conduct in health care markets has long been a key focus of FTC law 

enforcement,7 research,8 and advocacy.

9 Many of our recent advocacy comments have addressed 

scope of practice and supervision requirements that may unnecessarily limit the range of 

procedures or services a practitioner may provide, or unnecessarily restrict a particular type of 

practitioner from competing in the market.10 

Telehealth is an area of particular interest to the FTC because of its potential to increase 

the supply of available practitioners, encourage competition, and improve access to affordable, 

quality health care. In a 2004 report, the federal antitrust agencies considered the competitive 

effects of state restrictions on the interstate practice of telemedicine.

11 The central finding of that 

analysis remains applicable today: “When used properly, telemedicine has considerable promise

as a mechanism to broaden access, lower costs, and improve health care quality.”12 More 

recently, the Commission reiterated these benefits when it closed an investigation of the Texas 

Medical Board after the Texas legislature enacted a law overriding the Board’s rules restricting 

the practice of telehealth.13 FTC staff also submitted comments to the Alaska legislature and the 

Department of Veterans Affairs (“VA”) supporting proposals to allow licensed physicians to 

provide telehealth services across state lines.14 FTC staff continued to support license portability 

for telehealth in the 2018 report, Options to Enhance Occupational License Portability.

15 FTC 

staff also commented on telehealth issues in regard to a Washington state bill and regulations 

proposed by three Delaware occupational licensing boards.

16 These letters recommend that 

health care practitioners be allowed to use their own judgment in deciding whether the use of 

telehealth services is appropriate under the circumstances. The conclusions of the agencies’ 2004 

report and these recent FTC staff comments support reducing unjustified barriers to telehealth 

and underpin this comment. 

II. The Interim Final Rule: Regulatory Changes to the Current Framework for 

Telehealth in Response to the COVID-19 Public Health Emergency 

Telehealth, if broadly deployed, has the potential to mitigate challenges in access to 

health care arising from an aging population, healthcare workforce shortages, and geographic 

and other mal-distributions of providers. Telehealth can also address the needs of urban 

underserved patients who experience provider shortages arising from economic disparities and 

limited mobility, to the extent that these patients can access the necessary technology.17 

Telehealth can potentially increase the supply of accessible practitioners and thereby 

enhance price and non-price competition, reduce transportation expenditures, and improve access 

to and choice of quality care. 

18 Many experts consider reducing restrictions on Medicare 

reimbursement of telehealth services especially important for fulfilling telehealth’s potential, not 

only because Medicare places substantial limitations on using telehealth services, but also 

because Medicare influences the reimbursement policies of state Medicaid programs and private 

19 payers. 

2 
FTC staff support CMS as it reduces restrictions on Medicare reimbursement of 

telehealth services during this public health emergency, thus mitigating the exposure risk of 

patients and health care professionals. This comment provides a competition perspective on 

Medicare payment of telehealth services both during and after the public health emergency. In 

particular, we consider the IFC’s provisions with regard to six categories: 1) eliminating 

originating site and geographic requirements, thus allowing telehealth services to be provided to 

patients at any location, including the home; 2) expanding the types of services that may be 

furnished by telehealth; 3) providing for access to therapy services furnished by providers who 

are not statutorily authorized telehealth providers; 4) expanding the use of telehealth 

telecommunication modalities, including audio-only telephone; 5) allowing CTBS for new as 

well as established patients; and 6) allowing direct supervision required under Medicare’s

“incident to” billing rules to be carried out via interactive telecommunications technology. 

A. Allowing Telehealth Services to be Provided to Patients at Any Location, 

Including the Home 

We support CMS’s use of its waiver authority to allow Medicare to reimburse telehealth 

services provided to a patient at any location, including the patient’s residence, during this public 

health emergency.

20 This temporarily eliminates a major and longstanding barrier to providers of 

telehealth services.21 Ordinarily, Medicare’s fee-for-service program pays providers for 

telehealth services only when patients are located at certain types of health care facilities 

(“originating sites”),

22 and the facilities must be located in rural areas with a shortage of health 

professionals.23 Therefore, Medicare does not reimburse for telehealth services furnished to a 

patient at a residence, or in a metropolitan area. By restricting reimbursement, Medicare reduces 

the supply of providers, access to telehealth services, and competition at such locations. 

Allowing reimbursement of telehealth services in the home, in any geographic area, will 

greatly increase the ability to provide care safely during the pandemic. To mitigate exposure risk 

from COVID-19, the greatest need for telehealth services may be in densely populated urban 

areas where COVID-19 cases are common.24 As a result of shelter-in-place orders, both 

uninfected and infected patients are often at their homes or other residences.

25 By allowing 

telehealth services to be provided to patients anywhere, including at their residences, the waiver 

allows more patients to receive services without jeopardizing their health or the health of the 

professionals who provide care.26 

Although the public health emergency necessitated immediate removal of the geographic 

and originating site requirements, longstanding and broad support for eliminating these 

requirements existed before the pandemic.27 These requirements preclude reimbursement for 

services provided to urban beneficiaries with limited access to in-person care because of 

mobility, economic, or other barriers, as well as rural populations who may live far from an 

authorized originating site. The requirements inhibit entry of telehealth providers and limit 

patients’ access to care and choice of provider. Accordingly, the requirements could limit 

competition among practitioners, potentially reducing the quality and amount of care and 

increasing its costs. 

For these reasons, we strongly support suspending these requirements during the public 

health emergency, and we urge CMS to consider whether they should be permanently 

eliminated. Doing so would be consistent with the administration’s 2018 report, Reforming 

America’s Healthcare System Through Choice and Competition, which recommends that 

3 
“Congress should consider proposals modifying geographic location and originating site 

requirements in Medicare fee-for-service that restrict the availability of telehealth services to 

Medicare beneficiaries in their homes and in most geographic areas.”28 Experience during the 

pandemic with reimbursing telehealth services not subject to originating site and geographic 

location requirements should be helpful in evaluating whether it would also be beneficial to 

eliminate these requirements permanently after the emergency ends. 

B. Expanding the Types of Services that May be Furnished by Telehealth 

We also support the expansion of the types of Medicare-reimbursable telehealth services 

set forth in the IFC. By improving access to telehealth services and providers, patients, 

practitioners, and the Medicare program should benefit. Ordinarily, Medicare’s fee-for-service 

program restricts the services that can be provided via telehealth. The statute limits reimbursable 

telehealth services to “professional consultations, office visits, and office psychiatry services,”29 

which has resulted in a relatively short and narrow list of reimbursable telehealth services.30 The 

Secretary of the U.S. Department of Health and Human Services (“HHS”), however, may 

authorize additional services as warranted.

31 

To mitigate the risks of COVID-19 exposure for both patients and health care 

professionals, CMS has authorized more than 80 additional types of telehealth services during 

this public health emergency, including emergency department visits, initial nursing facility and 

discharge visits, intensive care unit services, and home visits.32 CMS does not consider the newly 

authorized services to be similar to the original, statutorily authorized services. Indeed, under 

normal procedures, CMS probably would not approve these procedures for reimbursement 

without a clinical study demonstrating patient benefit.33 But, in the face of this public health 

emergency where exposure risks are significant, CMS authorized the use of telehealth for these 

services.34 

This vast expansion of the types of reimbursable services eliminates a major restriction 

on telehealth care and allows telehealth services to be provided in novel and innovative ways that 

could improve triage, diagnosis, and treatment of COVID-19 patients. It also will reduce the 

coronavirus exposure risks of non-COVID-19 patients and health care professionals.

35 Without 

this expansion of reimbursable telehealth services, it could be difficult or impossible to provide 

many of the newly authorized services safely. By allowing practitioners to provide services 

remotely, especially in areas of need that are far away, the change likely increases beneficiaries’ 

access to needed care during the public health crisis. The change also could enhance the quality 

of services provided, increase competition, and reduce costs. 

The expansion of reimbursable telehealth services during this public health emergency 

should highlight the benefits and drawbacks of using telehealth to provide different types of 

services. As a result, CMS will be in a better position to decide whether to continue some or all 

of the added services after this emergency ends.

36 

C. Access to Therapy Services Furnished by Providers Who Are Not Statutorily 

Authorized Telehealth Providers 

Another major barrier to telehealth uptake is Medicare’s restrictions on the types of 

practitioners who are authorized to be reimbursed for telehealth services. Because of this 

statutory limitation, the IFC does not authorize payment to therapy practitioners, such as physical 

therapists, occupational therapists, and speech-language pathologists.37 Nevertheless, we support 

4 
CMS’s use of its waiver authority after the IFC was issued to designate these and other 

practitioners as authorized Medicare telehealth services providers. We believe this will enhance 

the supply of and access to therapy services. 

Therapy practitioners are able to provide many services to patients through telehealth. 

For example, speech-language pathologists can screen and treat students using telepractice, and 

audiologists can carry out diagnostic hearing assessments and hearing aid programming 

remotely.38 Physical therapists, occupational therapists, speech-language pathologists, 

audiologists, and others provide telerehabilitation care, which helps patients with stroke, head 

and spinal injury, neurological disorders, and other diseases regain everyday skills and maintain 

quality of life. In fact, telerehabilitation has the advantage of allowing the therapist to tailor care 

to the patient’s home or residence.39 

Although the IFC sets forth two approaches to improving remote access to therapy 

services, neither approach authorizes therapy practitioners to be reimbursed for telehealth 

services. Specifically: 

 First, the IFC authorizes payment for certain telehealth therapy services, such as physical 

therapy, occupational therapy, and speech-language pathology therapy, but only when the 

services are provided by the statutorily authorized telehealth providers, such as 

physicians, nurse practitioners, or physician assistants.40 Limiting reimbursement for 

telehealth therapy services to practitioners who do not ordinarily deliver these types of 

services, and lack the necessary expertise, is unlikely to facilitate remote access to safe 

and effective therapy services.41 

 Second, CMS authorizes therapy professionals to provide some remotely delivered 

CTBS, which are services that are routinely furnished using a telecommunications system 

but are not considered telehealth services. Examples include remote evaluation of online 

videos and virtual check-in services.42 But such services, referred to as “sometimes 

therapy” by CMS, do not facilitate continuing care by non-authorized providers.

43 

CMS subsequently used the broad waiver authority granted under Section 3703 of the 

Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”),44 which was enacted after 

the IFC was written, to allow therapy professionals, including physical therapists, occupational 

therapists, speech-language pathologists, audiologists, and all professionals eligible to bill 

Medicare, to be authorized Medicare telehealth providers during this public health emergency.

45 

Doing so allows a variety of therapy services to be delivered with little risk of exposure to 

COVID-19, benefiting both patients and practitioners. 

Based on its experience with reimbursing therapy practitioners for telehealth services 

during the current public health crisis, CMS should consider permanently adding these 

practitioners to the list of authorized telehealth providers. There is longstanding support for 

Medicare reimbursement of therapy practitioners and other practitioners not ordinarily eligible 

for reimbursement of telehealth services.

46 Making them authorized telehealth providers on a 

permanent basis could enhance the availability of therapists, access to care, choice of provider, 

competition, and quality, and also could reduce costs. Such improvements may especially benefit 

rural and underserved communities, as well as patients for whom travel is difficult.

47 

5 
D. Telehealth Telecommunication Modalities, Including Audio-Only Telephone 

We support CMS’s use of its waiver authority under the CARES Act to expand the list of

reimbursable telehealth services that may be provided by audio-only telephone.48 Although not 

prohibited by statute, services provided by audio-only telephone are not ordinarily reimbursable 

telehealth services under Medicare. Allowing Medicare to pay for certain audio-only telephone 

care as telehealth services could increase access, choice, and competition in the supply of 

telehealth services. 

Under existing Medicare regulations, telehealth services must be provided by a live, 

interactive telecommunications system with both audio and video components.49 The IFC did not 

change the regulatory restriction.50 Although the use of smartphones and other devices with 

audio/video capability is widespread, not all patients have smartphones, or a suitable computer or 

device with webcam and broadband access. Indeed, Medicare beneficiaries, the vast majority of 

whom are over 65 years of age, are in the demographic least likely to have or use audio/video 

systems. Rural and lower-income Americans may also lack suitable equipment.51 Even medical 

practices ramping up their telehealth capabilities have encountered difficulties such as dropped 

calls, poor quality, and lags when providing video visits, and have found that audio-only 

telephone calls form the basis of much of their care.52 

CMS acknowledges in the IFC that during the pandemic, audio-only telephone 

communication may be the only clinically appropriate option because two-way audio/video 

technology might be unavailable.53 Accordingly, the IFC authorizes limited reimbursement of 

audio-only telephone care as a non-telehealth service routinely provided by a 

telecommunications system.54 But, as discussed above, restrictions on reimbursement of such 

CTBS may limit its utility for continuing care.

55 

Allowing reimbursement for care provided by audio-only telephone as a telehealth 

service potentially increases access to safe and effective care and enhances competition among 

providers, especially in rural and underserved areas where access to audio/video devices and 

broadband service may be limited.56 We suggest that CMS consider whether such benefits 

support continuing telehealth reimbursement of audio-only telephone services after this crisis, or 

whether its experience with expanded telehealth reimbursement of these services reveals 

legitimate health and safety concerns that could justify discontinuing or narrowing such 

reimbursement after this public health emergency ends. 

E. Medicare’s Established Patient Requirement for Non-Telehealth 

Communication Technology-Based Services (“CTBS”)

Ordinarily, Medicare reimbursement of CTBS is available only when a practitioner cares 

for an established patient. There must be an established patient-practitioner relationship before a 

practitioner furnishes CTBS services such as virtual check-ins, remote physiologic monitoring, 

or telephone evaluation/management services.

57 Medicare generally defines an established 

patient as one that a practitioner, or another practitioner in the same practice, has seen in person 

during the past three years.58 Because rigid established patient and in-person examination 

requirements restrict the supply of available practitioners and may be unnecessary to protect 

consumers, we support CMS’s decision to enhance access to certain CTBS services during this 

public health emergency, either by modifying CMS’s requirements to allow these services to be 

provided to new as well as established patients, or by exercising its enforcement discretion.

59 As 

the IFC explains, brief communications and other services categorized as CTBS might reduce the 

6 
 

need for a risky in-person visit and “should be available to as large a population of Medicare 

beneficiaries as possible.”60 

More generally, by excluding reimbursement for services provided to new patients who 

have not seen a practitioner in person, the “established patient” requirement restricts care from 

direct-to-consumer (“DTC”) telehealth companies. Patients initiate contact with DTC companies, 

which typically provide care around-the-clock, using practitioners located anywhere, often 

beyond the range of a patient’s established in-person provider.61 By excluding such distant 

practitioners from providing CTBS, the “established patient” requirement restricts the supply of 

providers of telecommunication-based services, and may be unnecessary to protect consumers. 

Similarly, the “established patient” requirement prevents practitioners in traditional office 

settings—whether in the patient’s geographic area, or distant from it—from providing CTBS to 

new patients. 

As discussed in a number of FTC staff advocacy comments, in-person examination 

requirements prevent licensed health care providers from providing telehealth care that they 

otherwise would deem appropriate. Such restrictions potentially reduce competition, innovation, 

consumer choice, and the supply and quality of care, and may also increase price. Accordingly, 

FTC staff advocacy comments have opposed proposed laws and regulations that prohibit the use 

of telehealth for initial, as well as subsequent evaluations. Rather, FTC advocacy has favored 

flexible provisions that allow the licensed practitioner in the best position to weigh access, 

health, and safety considerations to decide whether to use telehealth. Such policies, which allow 

the patient-practitioner relationship to be established by telehealth and typically hold the 

practitioner to an in person standard of care, are supported by several physicians’

organizations.62 

We suggest that after the public health emergency ends, CMS consider allowing licensed 

practitioners to decide whether to provide at least some CTBS services to new as well as 

established patients. This approach would better promote competition and access to safe and 

affordable care. 

F. Allowing Direct Supervision Required Under Medicare’s “Incident To” 

Billing Rules to be Carried Out Via Telecommunications Technology 

In many circumstances, Medicare requires certain types of practitioners to be supervised 

at particular levels as a condition for payment for their services. Under Medicare’s “incident to” 

billing provisions, physicians can bill Medicare for services provided by nonphysician 

practitioners under their direct supervision,

63 such as advanced practice registered nurse 

practitioners (“APRNs”) and physician assistants (“PAs”). Direct supervision, typically

considered the most restrictive level of supervision, means that a physician or other supervisor 

must be present in the office suite and immediately available to provide assistance and 

direction.64 The IFC temporarily relaxes the direct supervision requirement during the public 

health emergency by changing the definition of direct supervision to allow remote supervision 

using audio/video telecommunications technology, thereby reducing COVID-19 exposure risk.65 

Although the change reduces exposure risk, it does not fully alleviate other potential 

negative effects of direct supervision requirements—for example, on practitioner efficiency, 

access to care, and practitioner supply. We suggest that CMS eliminate the direct supervision 

requirement for nonphysician practitioners such as APRNs and PAs, deferring instead to any 

7 
 

state supervision requirements. In the many states that allow APRNs and PAs to practice with 

less stringent supervision, this change would directly benefit healthcare consumers. 

Unduly restrictive supervision requirements directly impact access to nonphysician 

practitioners by limiting their supply where supervisors are scarce—for example, in areas where 

there is a shortage of health care professionals and in rural and underserved settings where 

supervising physicians are often unavailable.66 Direct supervision, which requires a supervisor to 

be on site, is particularly restrictive, barring affiliated practitioners from practicing in places 

where a supervisor is not physically present.67 Because practitioners could not care for 

homebound patients in underserved areas that lack supervising physicians, Medicare started to 

allow general supervision, which does not require a supervisor to be on site, for “incident to” 

services provided to homebound patients.68 

To further address such issues, in 1997, Congress granted nonphysician practitioners the 

ability to bill Medicare directly in all practice settings, under reduced supervision levels such as 

general supervision or collaboration.69 But many noninstitutional settings, like offices, still use 

“incident to” billing requiring direct supervision due to the incentives created by Medicare’s 

reimbursement rate structure.70 In these settings, physicians may use “incident to” billing under 

Medicare for services provided by PAs, nurse practitioners (“NPs”), and clinical nurse specialists 

(“CNSs”) under their direct supervision at 100 percent of the physician fee schedule rate, rather 

than the 85 percent rate used if these practitioners were to bill Medicare directly.

71 Because of 

this payment differential, employers of these nonphysician practitioners have a financial 

incentive to use “incident to” billing, thus triggering the direct supervision requirement.72 

Allowing physicians to directly supervise nonphysician practitioners remotely using 

telecommunications is unlikely to eliminate the restrictive impacts of direct supervision on 

access to care, practitioner efficiency, and competition, especially during the public health 

emergency. During the pandemic, the capacity of supervising physicians and nonphysician 

practitioners to provide care may be stretched thin. “Incident to” billing requires “the physician’s 

continuing active participation in and management of the course of treatment,”73 even when this 

level of supervision may not be necessary to ensure patient health and safety, potentially 

resulting in inefficient duplication of efforts by supervisors and supervisees.74 According to the 

Medicare Payment Advisory Commission (“MedPac”), “these billing rules could keep

physicians from optimally structuring their practice for efficiency and access,” for example “by 

requiring APRNs and PAs to treat established patients when their time might be better spent 

dealing with new patients with certain injuries or illnesses.”75 Even if supervision is provided by 

audio/video telecommunication,76 it is still unnecessary and counterproductive to require 

physicians to take time from patient care to directly supervise PAs, APRNs, and other 

nonphysician practitioners who have extensive education and training and who, under state law, 

are often allowed to work independently or with lower levels of supervision. 

HHS recognized this potential for supervision requirements to impair the efficiency of the 

COVID-19 response when it recommended that states “[t]emporarily suspend . . . any 

requirements for written agreements to meet supervision or collaboration requirements, in order 

to avoid significant delays in the provision of services.” Acknowledging the effects of 

requirements for an on-site supervisor, HHS also recommended that states “temporarily waive 

any requirements that the supervising physician be physically co-located with or within a certain 

geographic distance to the NP or PA who he or she is supervising.”77 In its Guidance to States, 

HHS summed up its position by recommending that states “allow health care professionals like 

8 
nurse practitioners (NPs), other registered nurses, and physician assistants (PAs) to practice to 

the fullest extent of their license and without restrictive supervision requirements.”78 

Similarly, in changing the required level of supervision for hospital outpatient therapeutic 

services from direct to general in 2020, CMS explained that direct supervision “places an 

additional burden on providers that reduces their flexibility to provide medical care,” especially 

in rural hospitals where there may be insufficient staff to furnish direct supervision. Moreover, in 

CMS’s experience, “Medicare providers will provide a similar quality of hospital outpatient 

therapeutic services, regardless of whether the minimum level of supervision required under the 

Medicare program is direct or general.”79 

Notably, Medicare’s direct supervision requirement for “incident to” billing operates in 

addition to any state supervision or collaboration requirements. Most state requirements were 

much less restrictive than Medicare’s requirement even before states reduced required 

supervision in response to the public health emergency. Before the COVID-19 crisis, about half 

the states allowed nurse practitioners to practice independently, and a smaller number required 

supervision or collaboration agreements.80 For PAs, while states generally required a specific 

supervisory or collaborative relationship with a physician, few required on-site supervision.81 

We recommend that CMS amend its Medicare rules to eliminate direct supervision of 

nonphysician practitioners in noninstitutional settings, and rely instead on each state’s

supervision or collaboration requirements to determine the level of oversight. For purposes of 

Medicare, the rules should allow any state-required supervision or collaboration to be provided 

by telecommunication systems as authorized by state law.

82 

Eliminating Medicare’s direct supervision requirement could improve access to health 

care professionals and services, especially in health professional shortage and underserved areas. 

Accordingly, we urge CMS to consider whether there are well-founded health and safety 

justifications for retaining the direct supervision requirement. 

More generally, we recommend that CMS ask Congress to eliminate the “incident to” 

billing provision, which is a vestige of a time when advanced practice registered nursing and 

physician assisting were nascent professions, and when state laws governing supervision of such 

practitioners were more restrictive.83 Instead, nonphysician practitioners should be required to 

bill Medicare directly, consistent with the recommendations of the report, Reforming America’s

Healthcare System Through Choice and Competition,84 and the 2019 MedPac Report to 

Congress.

85 Doing so could improve provider efficiency and beneficiary access to care and 

potentially reduce Medicare spending and beneficiary financial liability.86 

III. Conclusion 

By connecting widely separated providers and patients, telehealth can alleviate primary 

care and specialty shortages, especially in rural areas. Telehealth can also address the needs of 

urban patients who have difficulty accessing providers due to economic disparities and limited 

mobility. Reducing or eliminating certain reimbursement requirements could enhance the 

availability of telehealth providers; increase competition on price, quality, and innovation; and 

help improve outcomes and control costs. 

Reducing restrictions on reimbursement of telehealth and other telecommunicationsbased services is essential during the public health emergency to allow health care professionals 

9 
 

to provide care safely to Medicare beneficiaries, and to support and enhance the vast expansion 

of telehealth care that is already underway. 

We commend CMS and support the IFC’s provisions to reduce or eliminate restrictive 

Medicare telehealth payment provisions. At the same time, we respectfully suggest that CMS 

consider, in light of existing empirical evidence and any new evidence generated by these 

temporary measures, whether our suggestions to further reduce such restrictions, both during and 

after the public health emergency, would help to provide care safely, and also better promote 

competition and access to safe and affordable care. 

We appreciate your consideration. 

Respectfully submitted, 

Bilal Sayyed, Director 

Office of Policy Planning 

Andrew Sweeting, Director 

Bureau of Economics 

Ian Conner, Director 

Bureau of Competition 

Alden F. Abbott, General Counsel 

Office of the General Counsel 

1 This letter expresses the views of staff in the Federal Trade Commission’s Office of Policy Planning, Bureau of 

Economics, Bureau of Competition, and Office of the General Counsel. The letter does not necessarily represent the 

views of the Federal Trade Commission or of any individual Commissioner. The Commission, however, has 

authorized us to submit these comments. 

2 Interim Final Rule with Comment Period, Medicare and Medicaid Programs; Policy and Regulatory Revisions in 

Response to the COVID-19 Public Health Emergency, 85 Fed. Reg. 19,230 (April 6, 2020) (to be codified at 42 

C.F.R. pts. 400, 405, 409-10, 412, 414-15, 417-18, 421-23, 425, 482, 510). The regulations became effective on 

March 31, 2020, and applicable on March 1, 2020. See id. at 19,230. 

3 Pursuant to the Public Health Service Act § 319 (42 U.S.C. § 247d), Alex M. Azar II, Secretary of Health and 

Human Services, determined on Jan. 31, 2020, that a nationwide public health emergency (“PHE”) existed since 

10 
 

 

 

 

Jan. 27, 2020 due to the 2019 Novel Coronavirus. The Secretary renewed the PHE on April 21, 2020. See Renewal 

of Determination That a Public Health Emergency Exists, 

https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-21apr2020.aspx. A PHE lasts until the 

Secretary determines it is over, or a maximum of 90 days, but can be renewed as necessary. 42 U.S.C. § 247d(a). 

When a PHE has been declared, under section 1135 of the Social Security Act the Secretary can waive or modify 

certain Medicare and Medicaid requirements to ensure the availability of goods and services for those programs and 

to allow reimbursement of providers who cannot comply with certain requirements. A Presidential declaration of an 

emergency or disaster under the National Emergencies Act, 50 U.S.C. § 1601 et seq., is also necessary to exercise 

this authority. See 42 U.S.C. § 1320b-5. On Mar. 13, 2020, President Trump declared a National Emergency 

effective March 1, 2020. See Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). 

4 We take no position on the IFC’s regulatory revisions not discussed in this letter. 

5 Federal Trade Commission Act, 15 U.S.C. § 45. 

6 Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long has been faith 

in the value of competition.”).

7 See generally MARKUS H. MEIER ET AL., FTC, OVERVIEW OF FTC ACTIONS IN HEALTH CARE SERVICES AND 

PRODUCTS, https://www.ftc.gov/tips-advice/competition-guidance/industry-guidance/health-care (most recent 

version under “Core Health Care Competition Documents”). 

8 See, e.g., FTC & U.S. DEP’T OF JUSTICE, IMPROVING HEALTH CARE: A DOSE OF COMPETITION (2004), 

http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf. 

9 FTC and staff advocacy can include letters or comments addressing specific policy issues, Commission or staff 

testimony before legislative or regulatory bodies, amicus briefs, and reports. See, e.g., Comment from FTC Staff to 

Thomas E. Brinkman, Jr., Representative, Ohio House of Representatives (Jan. 9, 2020), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-ohio-house-representativesconcerning-ohio-house-bill-177/v200005ohiohb177aprnscomment.pdf (discussing the likely procompetitive effects 

of a Bill that would expand the scope of practice of APRNs in Ohio by ending Ohio’s mandatory written 

collaborative agreement requirement); Brief of Amicus Curiae FTC in Support of No Party, In re Nexium 

(Esomeprazole) Antitrust Litig., No. 15-2005 (1st. Cir. Feb. 12, 2016), 

https://www.ftc.gov/system/files/documents/amicus_briefs/re-nexium-esomeprazole-antitrustlitigation/160212nexiumbrief.pdf (explaining that a reverse payment from a brand-name drugmaker that is used to 

settle patent litigation can violate the antitrust laws if it induces a generic drugmaker to abandon its patent challenge 

and stay out of the market); FTC STAFF, POLICY PERSPECTIVES: COMPETITION AND THE REGULATION OF ADVANCED 

PRACTICE NURSES (“APRNS”) (2014), https://www.ftc.gov/system/files/documents/reports/policy-perspectivescompetition-regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf [hereinafter FTC STAFF POLICY 

PERSPECTIVES] (presenting an overview of FTC staff comments regarding APRNs, and an in depth analysis of the 

competitive effects of statutes and rules governing APRN scope of practice and supervision). 

10 See, e.g., Comment from FTC Staff to Daniel R. Hawkins, Rep., Kansas House of Representatives (Jan. 9, 2020), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-kansas-house-representativesconcerning-kansas-house-bill-2412/v200006kansashb2412aprnscomment.pdf (commenting on a bill that would 

eliminate a written collaboration agreement requirement for APRNs, and shift regulatory authority over APRNs 

from the nursing board to the medical board); Comment from FTC Staff to the Dep’t of Veterans Affairs (July 25, 

2016), https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-office-policy-planningbureau-competition-bureau-economics-departmentveterans/v160013_staff_comment_department_of_veterans_affairs.pdf (supporting proposed rule that would allow 

APRNs to provide VA services without physician oversight ). 

11 See FTC & U.S. DEP’T OF JUSTICE, supra note 8, ch. 2, at 30 (section on “State Restrictions on the Interstate 

Practice of Telemedicine”). 

12 Id. at Executive Summary at 23. 

11 
 

 

 

 

 

 

13 See Statement of the FTC on Commission Vote to Close Investigation of Texas Medical Board’s Conduct (June 

21, 2017), 

https://www.ftc.gov/system/files/documents/public_statements/1225993/1510180_texas_medical_board_statement_ 

of_the_commission_6-21-17.pdf. 

14 See Comment from FTC Staff to the Director, Regulation Pol’y and Mgmt., Dep’t of Veterans Affairs (Nov. 1,

2017), https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-department-veteransaffairs-regarding-its-proposed-telehealth-rule/v180001vatelehealth.pdf (supporting the VA’s proposed rule that 

would clarify the authority of VA health care providers to provide telehealth services to or from non-federal sites 

regardless of whether the provider is licensed in the state where the patient is located); Comment from FTC Staff to 

Steve Thompson, Representative, Alaska State Legislature (Mar. 25, 2016), https://www.ftc.gov/policy/policyactions/advocacy-filings/2016/03/ftc-staff-comment-alaska-state-legislature-regarding (regarding telehealth 

provisions in Senate Bill 74, which would allow licensed Alaska physicians located out of state to provide telehealth 

services). 

15 See FTC STAFF, POLICY PERSPECTIVES: OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY (2018), 

https://www.ftc.gov/reports/options-enhance-occupational-license-portability. 

16 See Comment from FTC Staff to Paul Graves, Representative, Washington State Legislature (Feb. 9, 2018), 

https://www.ftc.gov/policy/advocacy/advocacy-filings/2018/02/ftc-staff-comment-washington-state-rep-paul-graves 

(regarding a bill proposing an in-person examination requirement that would restrict telehealth eye care); Comment 

from FTC Staff to the Del. Bd. of Speech/Language Pathologists, Audiologists & Hearing Aid Dispensers (Nov. 29, 

2016), https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-delaware-boardspeech/language-pathologists-audiologists-hearing-aid-dispensers-regarding-its-proposed-revisionsits/161130_ftc_dealers_final_.pdf; Comment from FTC Staff to the Del. Bd. of Dietetics/Nutrition (Aug. 16, 2016), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-delaware-boarddietetics/nutrition-regarding-its-proposed-telehealth-regulation/de_telehealth-nutrition-v160015.pdf; and Comment 

from FTC Staff to the Del. Bd. of Occupational Therapy Practice (Aug. 3, 2016), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-delaware-board-occupationaltherapy-concerning-its-proposed-telehealth-regulation/v160014_delaware_ot_proposed_advocacy.pdf. 

17 See generally Karen Schulder Rheuban & Scott Shipman, Workforce, Definitions, and Models, in 

UNDERSTANDING TELEHEALTH ch. 2 (Karen S. Rheuban & Elizabeth A. Krupinski, eds., 2018) (“Telehealth is an 

essential tool to address the significant challenges of access to high-quality care, regardless of patient location. 

Telehealth tools and models of care delivery have been demonstrated to favorably affect both acute and chronic 

illnesses, reduce disparities, mitigate shortages, improve population health, and lower the costs of care.”); Am. 

Acad. of Pediatrics, Policy Statement: The Use of Telemedicine to Address Access and Physician Workforce 

Shortages, 136 PEDIATRICS 202, 203 (2015) (urban as well as rural children “face significant disparities in access

and time-distance barriers, which could be partly alleviated by the use of telehealth”); Hilary Daniel & Lois Snyder 

Sulmasy, Policy Recommendations to Guide the Use of Telemedicine in Primary Care Settings: An American 

College of Physicians Position Paper, 163 ANN. INT. MED. 787, app. (2015) [hereinafter Am. College of Physicians 

Position Paper] (“Limited access to care is not an issue specific to rural communities; underserved patients in urban 

areas have the same risks as rural patients if they lack primary or specialty care . . . .”); Rashid L. Bashshur et al., 

The Empirical Foundations of Telemedicine Interventions for Chronic Disease Management, 20 TELEMED. & EHEALTH 769, 770 (2014) (“Differences in access to care reflect economic, geographic, and functional as well as 

social, cultural, and psychological factors . . . . [M]any residents of the inner city have limited access to medical 

resources for economic reasons.”). Although telehealth can improve access to care, some underserved patients may 

not have the necessary technology, or be limited in their use of it. See infra note 51 and accompanying text. 

18 See, e.g., Comment from FTC Staff to Steve Thompson, supra note 14. 

19 See, e.g., Jack Resneck et al., Patients, Their Physicians, and Telehealth, in UNDERSTANDING TELEHEALTH ch. 21, 

272-73 (Karen S. Rheuban & Elizabeth A. Krupinski, eds., 2018) (“Physicians and health systems consistently cite 

lack of coverage and payment for services delivered via telemedicine as one of the obstacles to its adoption” and 

Medicare “has lagged substantially behind in terms of coverage and payment of telemedicine services, largely . . . 

due to restrictive provisions of the federal law governing the program”); Am. College of Physicians Position Paper, 

12 
 

 

 

 

supra note 17 (“One of the most significant challenges to wide-spread telemedicine adoption is reimbursement.”); 

Bryan L. Burke et al., American Academy of Pediatrics, Telemedicine: Pediatric Applications, 136 PEDIATRICS 

e294, e303 (2015) (“The most significant barriers are payment, licensing across state borders, and liability.”).

20 On March 17, 2020, CMS announced the temporary expansion of telehealth services pursuant to waiver authority 

added under the Social Security Act § 1135(b)(8) by the Coronavirus Preparedness and Response Supplemental 

Appropriations Act, 2020, Pub. L. No. 116-123, 134 Stat. 156 (2020). The Act provided authority to waive both the 

geographic and originating site requirements temporarily during an emergency. Pursuant to the waiver, any type of 

residence, such as homes or assisted living facilities, would be an authorized originating site. See IFC, 85 Fed. Reg. 

at 19,232-33; CMS, ADDITIONAL BACKGROUND: SWEEPING REGULATORY CHANGES TO HELP U.S. HEALTHCARE 

SYSTEM ADDRESS COVID-19 PATIENT SURGE (Mar. 30, 2020), https://www.cms.gov/newsroom/factsheets/additional-backgroundsweeping-regulatory-changes-help-us-healthcare-system-address-covid-19-patient. 

21 See, e.g., U.S. DEP’T OF HEALTH & HUMAN SERVICES, U.S. DEP’T OF THE TREASURY, & U.S. DEP’T OF LABOR, 

REFORMING AMERICA’S HEALTHCARE SYSTEM THROUGH CHOICE AND COMPETITION 41-42 (Dec. 2018), 

https://www.hhs.gov/sites/default/files/Reforming-Americas-Healthcare-System-Through-Choice-andCompetition.pdf [hereinafter CHOICE & COMPETITION REPORT]; Gary Capistrant, Medicare Coverage and 

Reimbursement Policies, in UNDERSTANDING TELEHEALTH ch. 23, 285-86 (Karen S. Rheuban & Elizabeth A. 

Krupinski, eds., 2018) (Medicare telehealth coverage is restrictive largely because its “telehealth provisions reflect a 

snapshot of the late 1990s”).

22 See 42 U.S.C. § 1395m(m)(4)(C)(ii); 42 C.F.R. § 410.78(b)(3) (a beneficiary receiving telehealth services must be 

located in a qualifying originating site, such as a practitioner’s office, a hospital, a rural health clinic, a federally 

qualified health center, a skilled nursing facility, or a community mental health center). Beginning in 2019, the home 

was authorized as a telehealth originating site for end stage renal disease-related clinical assessments and treatment 

of substance use disorders. See 42 U.S.C. § 1395m(m)(4)(C)(ii)(X); 42 C.F.R. § 410.78(b)(3). 

23 See 42 U.S.C. § 1395m(m)(4)(C)(i); 42 C.F.R. § 410.78(b)(4). Regulatory changes loosen these requirements 

slightly by including certain rural census tracts within Metropolitan Statistical Areas and setting covered geographic 

areas on an annual basis. See 78 Fed. Reg. 74,230, 74,400-402, 74,812 (2013). 

24 See, e.g., CDC COVID-19 Response Team, Geographic Differences in COVID-19 Cases, Deaths, and 

Incidence—United States, Feb. 12-April 7, 2020, 69 MORB. MORT. WKLY REP’T 465, 467 (2020) (“Because 

COVID-19 is primarily transmitted by respiratory droplets, population density might also play a significant role in 

the acceleration of transmission. Cumulative incidence in urban areas like NYC and DC exceeds the national 

average.”). Rural locations, however, experience their own significant challenges due to older average age, fewer 

resources, and a population with underlying health conditions. See, e.g., RACHEL FEHR ET AL., COVID-19 IN RURAL 

AMERICA—IS THERE CAUSE FOR CONCERN?, KAISER FAMILY FOUNDATION (Apr. 30, 2020), 

https://www.kff.org/other/issue-brief/covid-19-in-rural-america-is-there-cause-for-concern/#. 

25 See, e.g., Exec. Order No. 20-03-30-01 of the Governor of the State of Maryland (March 30, 2020) (prohibiting 

large gatherings and certain businesses, and “additionally requiring all persons to stay at home”); Exec. Order No. 

N-33-20 of the Governor of the State of California (Mar. 19, 2020) (ordering “all individuals living in the State of 

California to stay home or at their place of residence except as needed . . . .”).

26 See, e.g., Judd E. Hollander & Brendan G. Carr, Virtually Perfect? Telemedicine for Covid-19, 382 N. ENGL. J. 

MED. 1679 (2020) (describing benefits of using telemedicine during the pandemic). 

27 See, e.g., Jack Resneck et al., supra note 19, at ch. 21, 273-74 (“support for expanded access for all Medicare 

beneficiaries has grown rapidly among major health care providers and many policy makers” and the American 

Medical Association has urged CMS to exercise authorities to “[r]emove the current geographic and originating site 

restrictions that prevent delivery of what would otherwise be covered services in urban and suburban areas”); 

LATOYA THOMAS & GARY CAPISTRANT, AM. TELEMEDICINE ASS’N, STATE TELEMEDICINE GAPS ANALYSIS: 

COVERAGE & REIMBURSEMENT 6 (2017), https://legacy.americantelemed.org/main/policy-page/state-telemedicinegaps-reports (“artificial barriers such as geographic discrimination and restrictions on provider and patient settings

and technology type are harmful and counterproductive”); Am. College of Physicians Position Paper, supra note 17 

at 789 (“ACP supports lifting geographic site restrictions that limit reimbursement of telemedicine and telehealth 

13 
 

 

 

services by Medicare . . . .”); Am. Hospital Ass’n, Realizing the Promise of Telehealth: Understanding the Legal 

and Regulatory Challenges, TRENDWATCH 14 (May 2015), http://www.aha.org/research/reports/tw/15may-twtelehealth.pdf (urging federal and state policymakers to “[e]liminate geographic and setting location requirements”). 

28 CHOICE & COMPETITION REPORT, supra note 21 at 42. 

29 42 U.S.C. § 1395(m)(m)(4)(F). 

30 See e.g., Jack Resneck et al., supra note 19, at ch. 21, 273 (services covered and paid by Medicare “are limited to 

a short list of live video interactive services where an eligible Medicare beneficiary is located in a qualifying 

geographic location and facility (originating site) with extremely limited exceptions”); AM. MEDICAL ASS’N, 

REPORT 7-A-14 OF THE COUNCIL ON MEDICAL SERVICE, COVERAGE OF AND PAYMENT FOR TELEMEDICINE 2 (2014) 

(“narrow” list of covered services).

31 See 42 U.S.C. § 1395(m)(m)(4)(F). 

32 See IFC, 85 Fed. Reg. at 19,232-41 (e.g., Emergency Department Visits; Initial and Subsequent Observation, and 

Observation Discharge Day Management; Initial Hospital Care and Hospital Discharge Day Management; Initial 

Nursing Facility Visits and Nursing Facility Discharge Day Management; Domiciliary, Rest Home, or Custodial 

Care Services; Home Visits; Inpatient Neonatal and Pediatric Critical Care; Initial and Continuing Intensive Care 

Services; Care Planning for Patients with Cognitive Impairment; Group Psychotherapy; End-Stage Renal Disease 

Services; Psychological and Neuropsychological Testing). 

33 Id. at 19,232-34 (describing “Category 1” services that are similar to the statutorily authorized telehealth services, 

and “Category 2” services that are not similar to the authorized services and require clinical studies to demonstrate 

whether the use of a telecommunications system to furnish the service benefits the patient). CMS established this 

non-statutory process for adding or deleting reimbursable telehealth services in 2002. See IFC, 85 Fed. Reg. at 

19,233 (citing 67 Fed. Reg. 79,965, 79,988 (Dec. 31, 2002)); 42 C.F.R. § 410.78(f). 

34 See id. at 19,234 (CMS added to the list of payable services because the “use of telecommunication technology 

could mitigate the exposure risk, and in such cases, there is a clear clinical benefit of using such technology in 

furnishing the service . . . patients who should not be seen by a professional in-person due to the exposure risk are 

highly likely to be without access to clinically appropriate treatment or diagnostic options unless they have access to 

services furnished through interactive communication technology.”).

35 See, e.g., Judd E. Hollander & Brendan G. Carr, supra note 26; Jay Portnoy et al, Telemedicine in the Era of 

COVID-19, 8 J. ALLERGY CLIN. IMMUNOL. PRACT. 1489 (2020) (describing the use of telemedicine to avoid 

exposing non-COVID-19 patients and clinicians, and to assess and triage for COVID-19). 

36 Since CMS’s current procedures for authorizing telehealth services for reimbursement are not statutory, no 

statutory change should be necessary. See supra note 33. See also Sirina Keesara et al., Covid-19 and Health Care’s

Digital Revolution, N. ENGL. J. MED. (Apr. 2, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2005835 

(information gained during the pandemic on whether new digital approaches increase clinical productivity “will be 

critical to understanding whether these emergency authorizations should be made permanent”).

37 By statute, only physicians, physician assistants, nurse practitioners, clinical nurse specialists, nurse-midwives, 

clinical psychologists, clinical social workers, registered dietitians or nutrition professionals, and certified registered 

nurse anesthetists are eligible for reimbursement by Medicare for providing telehealth services. See 42 U.S.C. 

§ 1395m(m)(4)(D), (E); 42 C.F.R. § 410.78(b)(2). See also Jonathan Linkous, Overview of Common Challenges, in 

INST. OF MED. OF THE NAT’L ACADEMIES, THE ROLE OF TELEHEALTH IN AN EVOLVING HEALTH CARE 

ENVIRONMENT: WORKSHOP SUMMARY 17, 18 (2012) (“another major barrier to the use of telemedicine is Section 

1834(m) of the Social Security Act, which limits the use of telemedicine to certain providers.”).

38 See, e.g., Comment from FTC Staff to the Del. Bd. of Speech/Language Pathologists, Audiologists & Hearing Aid 

Dispensers, supra note 16, at 4-5 (discussing the range of speech and hearing care services that may be furnished via 

telehealth). 

39 See, e.g., Trevor G. Russel & Deborah G. Theodoros, Rehabilitation, in UNDERSTANDING TELEHEALTH ch. 12, 

155-56 (Karen S. Rheuban & Elizabeth A. Krupinski, eds., 2018). See also Steven C. Cramer et al., Efficacy of 

14 
 

 

 

Home-Based Telerehabilitation vs In-Clinic Therapy for Adults After Stroke: A Randomized Clinical Trial, 

76 JAMA NEUROL. 1079, 1080 (2019) (telehealth provided by physical therapists and occupational therapists “is an 

effective means to provide rehabilitation therapy and improve patient outcomes after stroke and may be useful for 

improving access to rehabilitation therapy”).

40 See IFC, 85 Fed. Reg. at 19,239-40. 

41 See id. at 19,239 (90 percent of the time therapy services are furnished by therapy professionals, such as physical 

therapists, occupational therapists and speech-language pathologists). 

42 See id. at 19,243-45 (“CTBS therapy services include those furnished to new or established patients that the 

occupational therapist, physical therapist, and speech-language pathologist practitioner is currently treating under a 

plan of care.”).

43 See id. at 19,244-45 (these services can only be billed when there has not been a related service within the past 7 

days and the service does not lead to a related service or procedure within the next 24 hours). See also Letter from 

Theresa H. Rodgers, President, American Speech-Language-Hearing Ass’n (“ASHA”), to Seema Verma, 

Administrator, CMS, Regarding CMS-1744-IFC, Apr. 3, 2020, at 2 (e-visits, virtual check-ins, and other forms of 

CTBS codes facilitate some interactions between patients and therapy providers, but “do not facilitate

comprehensive evaluation and treatment, have limited practical utility, and do not extend access to services 

otherwise covered when provided in-person”). 

44 See CARES Act, Pub. L. 116-136, § 3703, 134 Stat. 416 (2020). Section 3703 of the CARES Act, Increasing 

Medicare Telehealth Flexibilities during Emergency Period, amends section 1135(b)(8) of the Social Security Act 

(42 U.S.C. § 1320b-5(b)(8)), so as to provide waiver authority pertaining to telehealth services “furnished in any 

emergency area . . . during any portion of any emergency period, the requirements of section 1834(m).” Section

1834(m) of the Social Security Act, 42 U.S.C. § 1395m(m), sets forth the requirements for Medicare reimbursement 

of telehealth services, including authorized providers. 

45 See CMS, COVID-19 EMERGENCY DECLARATION BLANKET WAIVERS FOR HEALTH CARE PROVIDERS (April 29, 

2020), https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf (Flexibility for 

Medicare Telehealth Services, Eligible Practitioners). 

46 See, e.g., Alan Morgan, National Rural Health Association, in INST. OF MED. OF THE NAT’L ACADEMIES, THE 

ROLE OF TELEHEALTH IN AN EVOLVING HEALTH CARE ENVIRONMENT: WORKSHOP SUMMARY 115, 116 (2012) 

(recommending reimbursement of “care provided by physical therapists, respiratory therapists, and social workers. 

These services are in high demand in rural areas, but are often not available to rural communities.”). See also 

American Telemedicine Association, Comments to the Federal Trade Commission, Examining Health Care 

Competition 4 (April 30, 2015) (recommending reimbursement of “[p]rovider services otherwise covered by 

Medicare, such as physical therapy, occupational therapy and speech-language hearing services”); Alan Chong W. 

Lee & Nancy Harada, Telehealth as a Means of Health Care Delivery for Physical Therapist Practice, 92 PHYS. 

THER. 463, 463-464, 466 (2012) (physical therapists have used telehealth to deliver rehabilitative services to elderly 

individuals in their homes, but “Medicare poses the ultimate barrier to widespread telehealth implementation in the 

United States because physical therapists are not listed as eligible practitioners.”).

47 See Comment from FTC Staff to the Del. Bd. of Speech/Language Pathologists, Audiologists & Hearing Aid 

Dispensers, supra note 16; Comment from FTC Staff to the Del. Bd. of Occupational Therapy Practice, supra note 

16. 

48 See CMS, supra note 45 (audio-only telephone for certain services). 

49 See 42 C.F.R. § 410.78(a)(3) (For purposes of Medicare reimbursement, “[t]elephones, facsimile machines, and 

electronic mail systems do not meet the definition of an interactive telecommunications system.”). Medicare law 

does not specify the nature of the telecommunications system required for payment. See 42 U.S.C. § 1395m(m)(1) 

(“The Secretary shall pay for telehealth services that are furnished via a telecommunications system by a physician . 

. . or a practitioner . . . to an eligible telehealth individual enrolled under this part notwithstanding that the individual 

physician or practitioner providing the telehealth service is not at the same location as the beneficiary.”).

15 
 

 

50 See IFC, 85 Fed. Reg. at 19,243 (amending 42 C.F.R. § 410.78(a)(3) by adding (a)(3)(i), defining “interactive 

telecommunications system” for the duration of the PHE). 

51 See, e.g., MONICA ANDERSON, MOBILE TECHNOLOGY AND HOME BROADBAND 2019 (June 13, 2019), 

https://www.pewresearch.org/internet/2019/06/13/mobile-technology-and-home-broadband-2019/; PEW RESEARCH 

CENTER, MOBILE FACT SHEET (June 12, 2019), https://www.pewresearch.org/internet/fact-sheet/mobile/#mobilephone-ownership-over-time; ANDREW PERRIN, DIGITAL GAP BETWEEN RURAL AND NONRURAL AMERICA PERSISTS 

(May 31, 2019), https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonruralamerica-persists/; MONICA ANDERSON & MADHUMITHA KUMAR, DIGITAL DIVIDE PERSISTS EVEN AS LOWER-INCOME 

AMERICANS MAKE GAINS IN TECH ADOPTION (May 7, 2019), https://www.pewresearch.org/facttank/2019/05/07/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/. 

52 See Ateev Mehrotra et al., Rapidly Converting to “Virtual Practices”: Outpatient Care in the Era of Covid-19, 

1 NEJM CATALYST: INNOVATIONS IN CARE DELIVERY (2020), 

https://catalyst.nejm.org/doi/full/10.1056/CAT.20.0091. 

53 See IFC, 85 Fed. Reg. at 19,265. 

54 See id. at 19,264-65 (codes for reimbursing telephone evaluation and management services provided by 

physicians and other professionals; codes for reimbursing telephone assessment and management services provided 

by nonphysicians). 

55 See id. at 19,265; supra note 43 and accompanying text. The IFC acknowledges the limited utility of the 

authorized CTBS, stating that under ordinary circumstances, patients requiring longer telephone evaluations would 

need an in-person or telehealth visit. See IFC, 85 Fed. Reg. at 19,265. 

56 See, e.g., Chethan Bachireddy et al., Securing the Safety Net and Protecting Public Health During a Pandemic: 

Medicaid’s Response to COVID-19, 323 JAMA 2009 (2020) (recommending that state Medicaid agencies should 

address technological barriers to telehealth by allowing clinicians and health care organizations to bill for telephonic 

services if they cannot provide the video component); Lori Uscher-Pines & Ateev Mehrotra, Analysis of Teladoc 

Use Seems to Indicate Expanded Access to Care for Patients without Prior Connection to a Provider, 33 HEALTH 

AFF. 258, 259 (2014). 

57 See IFC, 85 Fed. Reg. at 19,264 (current policy for CTBS non-telehealth services requires an established patientpractitioner relationship); id. at 19,244-45, 19,254, 19,264-65 (discussing non-face-to-face CTBS). 

58 See e.g., MEDICARE CLAIMS PROCESSING MANUAL ch 12, § 30.6.7.A (2019). Medicare defines an established 

patient as one who is not a “new patient,” which means “a patient who has not received any professional services, 

i.e., [evaluation and management] service or other face-to-face service (e.g., surgical procedure) from the physician 

or physician group practice (same physician specialty) within the previous 3 years.” Id. See also Am. Med. Ass’n, 

CPT Evaluation and Management (E/M) Office or Other Outpatient . . . and Prolonged Services . . . Code and 

Guideline Changes 9 (effective 2021, New and Established Patient), https://www.ama-assn.org/system/files/2019-

06/cpt-office-prolonged-svs-code-changes.pdf; Jana Cason, Telehealth is Face-to-Face Service Delivery, 9 INT. J. 

TELEREHAB. 77 (2017) (“face-to-face” is an outmoded term that means “in person” care in Medicare and other 

regulations). 

59 See IFC, 85 Fed. Reg. at 19,244-45, 19,254, 19,264-65 (remote evaluation of recorded video, virtual check-in, 

online digital evaluation and management services, remote physiologic monitoring, telephone 

evaluation/management services). We also suggest that CMS clarify that the definition of “qualified providers,”

which required physicians or other practitioners to have an established relationship with a patient for whom 

Medicare paid for a service furnished by the practitioner or another practitioner in the same practice within the 

previous three years, no longer applies because the CARES Act struck this definition of qualified provider on March 

27, 2020. See id. at 19,251. 

60 Id. at 19,244. 

61 See, e.g., Ateev Mehrotra et al., The Dawn of Direct-to-Consumer Telehealth, in UNDERSTANDING TELEHEALTH 

ch. 18, 217-18, 221 (Karen S. Rheuban & Elizabeth A. Krupinski, eds., 2018) (in DTC telehealth, the “clinician 

16 
 

 

 

 

 

 

 

typically does not have any established relationship with the patient, however, the patient will be matched to a 

clinician licensed to practice in his or her state of residence”).

62 See, e.g., Comment from FTC Staff to Paul Graves, supra note 16 (allowing eye care providers to decide whether 

to use telehealth); Comment from FTC Staff to the Del. Bd. of Speech/Language Pathologists, Audiologists & 

Hearing Aid Dispensers, supra note 16; Comment from FTC Staff to the Del. Bd. of Dietetics/Nutrition, supra note 

16; Comment from FTC Staff to the Del. Bd. of Occupational Therapy Practice, supra note 16; Comment from FTC 

Staff to Steve Thompson, supra note 14 (allowing licensees located out-of-state to provide telehealth services 

without conducting an in person examination). 

63 See IFC, 85 Fed. Reg. at 19,245-46 (Under 42 C.F.R. § 410.26, “services incident to a physicians’ service usually

require the direct supervision of a physician”). See also Social Security Act § 1861(s)(2)(A), 42 U.S.C. 

§ 1395x(s)(2)(A) (services and supplies “furnished as an incident to a physician’s professional service, of kinds

which are commonly furnished in physicians’ offices and are . . . included in the physicians’ bills); MEDICARE 

BENEFIT POLICY MANUAL, ch. 15, § 60, Services and Supplies Furnished Incident to a Physician’s/NPP’s 

Professional Service (July 12, 2019). Nonphysician practitioners “include, for example, certified nurse midwives,

clinical psychologists, clinical social workers [“CSWs”], physician assistants, nurse practitioners, and clinical nurse 

specialists.” Id. at § 60.2. 

64 See 42 C.F.R. § 410.32(b)(3)(ii). Direct supervision “does not mean that the physician must be present in the room

when the procedure is performed.” Id. 

65 See IFC, 85 Fed. Reg. at 19,246. 

66 See, e.g., Comment from FTC Staff to the Texas Medical Bd. 9 (Dec. 6, 2019), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-comment-texas-medical-board-its-proposedrule-19313-add-supervision-requirements-texas-certified/v200004_texas_nurse_anesthetists_advocacy_letter.pdf 

(discussing access problems in rural and underserved areas arising from supervision requirements for certified 

registered nurse anesthetists); FTC STAFF, POLICY PERSPECTIVES, supra note 9, at Sec.III (discussion of APRN 

physician supervision requirements). See also Barbara J. Safreit, Federal Options for Maximizing the Value of 

Advanced Practice Nurses in Providing Quality, Cost-Effective Health Care, in INST. OF MED. OF THE NAT’L 

ACADEMIES, THE FUTURE OF NURSING: LEADING CHANGE, ADVANCING HEALTH, App. H, 450 (2011) (in rural and 

underserved areas, patients are denied access to care provided by APRNs because of the lack of willing and 

available supervising physicians). 

67 See, e.g., Comment from FTC Staff to Valencia Seay, Senator, Ga. State Senate 3 (Jan. 29, 2016), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-georgia-state-senator-valenciaseay-concerning-georgia-house-bill-684/160201gadentaladvocacy.pdf (regarding removal of direct supervision 

requirements for dental hygienists). 

68 See MEDICARE BENEFIT POLICY MANUAL, supra note 63, ch. 15, § 60.4(A); MEDICARE PAYMENT ADVISORY 

COMMISSION (“MEDPAC”), REPORT TO THE CONGRESS: MEDICARE AND THE HEALTH CARE DELIVERY SYSTEM 147 

(June 2019) [hereinafter MEDPAC REPORT TO CONGRESS] (discussing how requiring direct supervision of 

nonphysician personnel for “incident to” billing restricted the provision of services by NPs and PAs in rural areas 

with few physicians). 

69 See MEDPAC REPORT TO CONGRESS, supra note 68, at 147; 42 U.S.C. § 1395x(s)(2)(K). The level of supervision 

required varies. For example, NPs and CNSs must collaborate with a physician to bill Medicare for their services. 

See 42 U.S.C. § 1395x(s)(2)(K)(ii); MEDICARE BENEFIT POLICY MANUAL, supra note 63, ch. 15, §§ 200, 210. 

General supervision is required for PAs, and may be provided by telephone. See 42 U.S.C. § 1395x(s)(2)(K)(i), 

MEDICARE BENEFIT POLICY MANUAL, supra note 63, ch. 15, § 190. Certified Nurse Midwives (“CNMs”) are not 

required to have a relationship with a physician for Medicare payment, and the level of supervision is set by state 

law. See MEDICARE BENEFIT POLICY MANUAL, supra note 63, ch. 15, § 180; 42 U.S.C. § 1395x(s)(2)(L). 

70 In 2016, about half of NPs likely had some or all of their services billed “incident to,” and about 43 percent of 

PAs. See MEDPAC REPORT TO CONGRESS, supra note 68, at 156, 157 (June 2019). It is not possible to precisely 

determine the extent of “incident to” billing because claims data do not show that a claim was billed “incident to,” 

and display the identifier of the billing physician, obscuring which practitioner provided care. See id. at 154-158. 

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71 See MEDPAC REPORT TO CONGRESS, supra note 68, at 128, 159, 167. See also 42 U.S.C. § 1395l(a)(1)(O) (for 

services directly billed by PAs, NPs, or CNSs under 42 U.S.C. § 1395x(s)(2)(K), “the amounts paid shall be equal to 

80 percent of (i) the lesser of the actual charge or 85 percent of the fee schedule amount” for physicians). See also 

MEDICARE CLAIMS PROCESSING MANUAL, supra note 58, at ch. 12, §§ 110, 120. Direct payment rates vary, e.g., 

CNMs are paid 100% of the fee schedule amount for physicians regardless of whether billed directly or “incident 

to,” while CSWs who bill directly are paid 75% of the physician fee schedule amount. See 42 U.S.C. 

§ 1395l(a)(1)(F), (K); MEDICARE CLAIMS PROCESSING MANUAL, supra note 58, at ch. 12, §§ 130, 150. 

72 See MEDPAC REPORT TO CONGRESS, supra note 68, at 151, 155, 160 (June 2019). 

73 MEDICARE BENEFIT POLICY MANUAL, supra note 63, ch. 15, § 60.2. 

74 See Comment from FTC Staff to Valencia Seay, supra note 67, at 3. 

75 MEDPAC REPORT TO CONGRESS, supra note 68, at 159. 

76 We also note the difficulties with requiring audio/video telecommunications, discussed above in section II.D., and 

suggest that audio-only telecommunication be allowed for any supervision required by Medicare. This is consistent 

with Medicare requirements for general supervision. See supra note 69. 

77 Letter from Alexander M. Azar II, Secretary of Health and Human Services, to Governors 2 (Mar. 24, 2020), 

https://www.ncsbn.org/HHS_Secretary_Letter_to_States_Licensing_Waivers.pdf. 

78 Guidance to States 2 (Mar. 24, 2020), attachment to Letter from Alexander M. Azar II, supra note 77, 

https://www.ncsbn.org/HHS_Guidence_to_States_on_Regulations_on_Healthcare_Workers.pdf . 

79 Medicare Program: Changes to Hospital Outpatient . . . Payment . . . , 84 Fed. Reg. 61,142, 61,160 (Nov. 12, 

2019). 

80 See, e.g., NAT’L CONF. OF STATE LEGISLATURES & ASS’N OF STATE AND TERRITORIAL HEALTH OFFICIALS, SCOPE 

OF PRACTICE POLICY, NURSE PRACTITIONER OVERVIEW, http://scopeofpracticepolicy.org/practitioners/nursepractitioners/ (last visited Feb. 10, 2020) (showing states with full independent practice authority, those for which a 

transition to independent practice period is required, and those requiring a physician relationship); AM. ASS’N OF 

NURSE PRACTITIONERS, 2019 NURSE PRACTITIONER STATE PRACTICE ENVIRONMENT (Dec. 20, 2018), 

https://storage.aanp.org/www/documents/state-leg-reg/stateregulatorymap.pdf; E. KATHLEEN ADAMS & SARA 

MARKOWITZ, THE HAMILTON PROJECT, IMPROVING EFFICIENCY IN THE HEALTH-CARE SYSTEM: REMOVING 

ANTICOMPETITIVE BARRIERS FOR ADVANCED PRACTICE REGISTERED NURSES AND PHYSICIAN ASSISTANTS, POLICY 

PROPOSAL 23-24 (June 2018), https://www.hamiltonproject.org/assets/files/AdamsandMarkowitz_20180611.pdf. 

81 See, e.g., AM. ACAD. PAS (“AAPA”), THE SIX KEY ELEMENTS OF A MODERN PA PRACTICE ACT (June 2019), 

https://www.aapa.org/wp-content/uploads/2017/05/6_KE_Chart_5-5-17.pdf (chart of key PA practice provisions by 

state); AAPA, ISSUE BRIEF: THE SIX KEY ELEMENTS OF A MODERN PA PRACTICE ACT (Aug. 2018), 

https://www.aapa.org/download/29342/); E. KATHLEEN ADAMS & SARA MARKOWITZ, supra note 80 at 8-9, 22-3 

(“Unlike APRNs, PAs must practice medicine under the supervision of a physician, but the required nature of that 

supervision varies by state. . . . Requirements may include collaborative work plans that outline the procedures the 

PA is allowed to perform and statements of required amount of physician contact, consulting, and monitoring.”); 

AM. MED. ASS’N, PHYSICIAN ASSISTANT SCOPE OF PRACTICE 2 (2018), https://www.ama-assn.org/sites/amaassn.org/files/corp/media-browser/public/arc-public/state-law-physician-assistant-scope-practice.pdf (46 states and 

the District of Columbia require physician supervision of PAs, two states require collaboration agreements, and two 

allow for alternate arrangements). 

82 States would have to allow remote supervision for practitioners to take advantage of a federal provision of this 

type. The March 24, 2020 letter from HHS Secretary Azar to state governors recommends that states, “Allow

physicians to supervise a greater number of other health professionals and to do so using remote or telephonic 

means.” See Azar, supra note 77, at 1. 

83 See, e.g., MEDPAC REPORT TO CONGRESS, supra note 68, at 158; Emily A. Gadbois et al., Trends in State 

Regulation of Nurse Practitioners and Physician Assistants, 2001 to 2010, 72 MED. CARE RES. REV. 200 (2015). 

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84 See CHOICE & COMPETITION REPORT, supra note 21, at 36 (The federal government and states should consider 

allowing “non-physician and non-dentist providers to be paid directly for their services where evidence supports that 

the provider can safely and effectively provide that care.”). 

85 See MEDPAC REPORT TO CONGRESS, supra note 68, at 160 (Recommendation 5-1, “The Congress should require 

advanced practice registered nurses and physician assistants to bill the Medicare program directly, eliminating 

‘incident to’ billing for services they provide.”).

86 See MEDPAC REPORT TO CONGRESS, supra note 68, at 159, 162. As explained above, Medicare direct billing rates 

vary by provider, ranging from 75 percent of the physician fee schedule rate to 100 percent. See supra note 71. 

Thus, eliminating “incident to” billing does not necessarily entail a change to a particular billing rate. We do not 

take a position on what billing rate is optimal for each type of nonphysician practitioner. 

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