COVID-19 Telehealth Flexibilities: What’s Permanent? (42 CFR § 410.78(b)(5))

Medicare telehealth coverage expanded significantly during the COVID-19 public health emergency (PHE), allowing small practices to deliver care remotely with fewer geographic and technology restrictions. Following the end of the PHE, many flexibilities expired, while others were continued through statute and regulation. This article explains which Medicare telehealth flexibilities remain available under 42 CFR § 410.78, how they apply to small practices, and what compliance conditions must be met to avoid billing errors, denials, or audits.

During the COVID-19 PHE, the Centers for Medicare & Medicaid Services (CMS) temporarily waived several statutory and regulatory limits on telehealth services. These waivers expanded originating sites, allowed broader use of audio-only communication, and enabled patients to receive care from their homes. When the PHE ended, CMS did not make all of these changes permanent. Instead, post-PHE telehealth policy is now governed by a combination of statute and regulation, primarily codified in 42 CFR § 410.78.

For small healthcare practices, understanding which flexibilities remain in effect, and under what conditions, is essential. Incorrect assumptions about permanent coverage, especially regarding audio-only services or patient homes as originating sites, can result in improper billing and repayment risk. This article clarifies current Medicare telehealth rules using the regulatory framework in effect as of December 30, 2025.

Understanding Post-PHE Telehealth Coverage Under 42 CFR § 410.78

Section 410.78 establishes the conditions under which Medicare Part B pays for telehealth services. Coverage depends on three core elements:

1. Technology used

2. Location of the patient (originating site)

3. Type of service and practitioner

While some telehealth policies continued after the PHE, they are not universal or unconditional. Each flexibility applies only in defined circumstances.

Medicare generally requires telehealth services to be furnished using an interactive telecommunications system.

Under 42 CFR § 410.78(a)(3), this system must include audio and video permitting real-time, two-way communication between the patient and the distant-site practitioner.

CMS allows audio-only telehealth only when all regulatory conditions are met, including:

• The practitioner is technically capable of using audio-video technology

• The patient is not capable of, or does not consent to, video use

• Required billing modifiers are applied

Audio-Only Billing Modifiers

• CPT Modifier 93 – required for audio-only telehealth services

• Modifier FQ – additionally required for Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)

Failure to meet these conditions or apply the correct modifiers may result in claim denial or recoupment.

An originating site is the location of the Medicare beneficiary when the telehealth service is furnished.

Under 42 CFR § 410.78(b)(3), Medicare allows telehealth services from a defined list of originating sites, including physician offices, hospitals, RHCs, FQHCs, skilled nursing facilities, and certain patient homes.

Patient Home as an Originating Site

The patient’s home is permitted as an originating site only in specific circumstances, including:

• Home dialysis-related services

• Substance use disorder treatment

• Certain mental health services, subject to additional conditions

For telehealth services furnished to a beneficiary in their home for the diagnosis, evaluation, or treatment of a mental health disorder, Medicare imposes additional requirements under 42 CFR § 410.78(b)(3)(xiv).

In-Person Visit Requirements

Medicare payment is permitted only if:

• The practitioner (or another practitioner of the same specialty in the same group) furnished an in-person service within 6 months prior to the initial telehealth visit; and

• An in-person visit occurs at least once every 12 months thereafter

An exception applies when the practitioner and patient jointly determine that the risks or burdens of in-person care outweigh the benefits, and the rationale is documented in the medical record.

Only practitioners specifically listed in 42 CFR § 410.78(b)(2) may furnish and bill for Medicare telehealth services. These include:

• Physicians

• Nurse practitioners

• Physician assistants

• Clinical psychologists

• Clinical social workers

• Marriage and family therapists

• Mental health counselors

Practices must ensure that telehealth services are billed only by eligible practitioners and only for covered services.

Step 1: Identify Covered Telehealth Services

Review the Medicare Telehealth Services List to confirm which services remain payable.

Step 2: Confirm Technology Modality

Document whether the encounter is audio-video or audio-only and confirm regulatory conditions are met.

Step 3: Verify Originating Site Eligibility

Confirm the patient’s location qualifies for the service provided.

Step 4: Apply Required Modifiers

Ensure CPT modifier 93 (and FQ where applicable) is appended correctly.

Step 5: Document In-Person Visit Compliance

Track and document required in-person visits for mental health telehealth services.

• Telehealth service is on the CMS Telehealth Services List

• Practitioner type is eligible under § 410.78(b)(2)

• Technology modality meets § 410.78(a)(3) requirements

• Audio-only services include required modifiers

• Originating site qualifies under § 410.78(b)(3)

• Mental health in-person visit requirements are met and documented

Compliance Oversight and Enforcement

CMS administers and enforces Medicare telehealth reimbursement requirements under 42 CFR § 410.78. Claims submitted in violation of these requirements may be denied or recouped.

The HHS Office for Civil Rights (OCR) separately enforces HIPAA Privacy and Security Rules related to telehealth technology and data protection but does not enforce Medicare payment rules.

Common Compliance Pitfalls

• Billing audio-only services without meeting regulatory conditions

• Treating all patient homes as eligible originating sites

• Failing to document required in-person mental health visits

• Continuing use of non-HIPAA-compliant platforms

• Assuming expired PHE waivers remain in effect

Post-PHE Medicare telehealth coverage is governed by specific, conditional rules under 42 CFR § 410.78. While some flexibilities continue, they apply only in defined circumstances and require careful documentation and billing discipline. Small practices that align telehealth workflows with current regulatory requirements can continue offering remote care while minimizing compliance risk.

To further strengthen your compliance posture, consider using a compliance regulatory tool. These platforms help track and manage requirements, provide ongoing risk assessments, and keep you audit-ready by identifying vulnerabilities before they become liabilities, demonstrating a proactive approach to regulators, payers, and patients alike.

• 42 CFR 410.78 ,  Medicare telehealth services
  

• CMS Telehealth Services List
  

• HHS Telehealth resources for providers
  

• OCR HIPAA telehealth guidance