Telehealth News Roundup: Policy Updates Impacting Virtual Care
Legislative activity related to telehealth and AI picked up during the fourth quarter of 2023. Several new developments could have far-reaching implications for healthcare stakeholders. Here is a recap on some of the policy updates impacting virtual care.
Expanding grants for AI research in vital areas like healthcare
In the EO, the Administration addresses both the transformative potential and risks of AI, outlining broad actions to govern the development and use of the technology. Legal consultants with McDermott Will & Emery (MWE) offered a great deep-dive into the healthcare-specific points in the EO, including these important milestones:
Protecting Consumers, Patients, Passengers and Students
Within 90 days of the EO’s publication, the HHS Secretary is required to establish an HHS AI Task Force.
Within one year of establishment, the Task Force is required to develop a strategic plan on policies and frameworks for the responsible deployment of AI in healthcare.
Within 180 days of the EO’s publication, the HHS Secretary is required todevelop a strategy to determine whether health AI technologies maintain appropriate levels of quality.
Within 365 days of the date of this order, the HHS Secretary is required to establish anAI safety programthat establishes acommon framework for approaches to identify and capture clinical errors resulting from AIdeployed in healthcare settings.
Promoting Innovation
Within 90 days of the EO’s publication, in coordination with the heads of agencies that the director of the US National Science Foundation (NSF) deems appropriate,launch a pilot program implementing the National AI Research Resource (NAIRR).
Within 540 days of the EO’s publication, the director of NSF should establish at leastfour new national AI research institutes and identify grantmaking opportunities to support responsible AI development and use.
As MWE put it, “This is a pivotal moment for AI governance. Many of the key, material details and AI governance standards will be developed during the next six months to one year. For organizations interested in developing or using AI or machine learning tools in healthcare, there will be far-reaching implications as new standards, compliance expectations, and other guidelines emerge.”
Controlled Substance Flexibilities
Also of note in October 2023, the Drug Enforcement Agency (DEA) and the Department of Health and Human Services (HHS) once again extended flexibilities related to the prescription of controlled substances via telehealth through the end of 2024.
A practitioner can prescribe a controlled substance to a patient using telemedicine, even if the patient isn’t at a hospital or clinic registered with the DEA.
Qualifying practitioners can prescribe buprenorphine to new and existing patients with opioid use disorder based on a telephone evaluation.
As reported by Healthcare Dive, this marks the second extension of relaxed prescribing rules, making it possible for clinicians to prescribe drugs like opioid use disorder and ADHD medications without first conducting an in-person evaluation.
With many of the telehealth flexibilities enacted during the pandemic set to expire at the end of next year, 2024 is “shaping up to be the Super Bowl for telehealth,” as Kyle Zebley, the American Telemedicine Association (ATA) senior vice president for public policy and executive director of ATA Action, put it.
During the hearing, four healthcare providers working in telehealth offered expert witness testimonies outlining essential flexibilities to make permanent:
Allowing video visits for all conditions for all Medicare beneficiaries.
Allowing physicians to provide care and services to patients via audio-only modalities.
Expanding beyond qualified healthcare centers to allow licensed physical therapy, occupational therapy, and speech-language pathology practitioners to utilize telehealth services.
Opinions still differ on the future of telehealth payment parity. Some recommend reimbursing telehealth services at a lower rate to avoid market distortions while others argue that providers will cease offering these services without parity. As the Center for Telehealth and e-Health Law (CTeL) put it in a recent summary of the hearing, “Oftentimes, without the option of services provided via telehealth, patients are left with the “choice” of no care at all. Which isn’t really a choice at all.”
Telehealth News Roundup: Policy Updates Impacting Virtual Care
Legislative activity related to telehealth and AI picked up during the fourth quarter of 2023. Several new developments could have far-reaching implications for healthcare stakeholders. Here is a recap on some of the policy updates impacting virtual care.
Expanding grants for AI research in vital areas like healthcare
In the EO, the Administration addresses both the transformative potential and risks of AI, outlining broad actions to govern the development and use of the technology. Legal consultants with McDermott Will & Emery (MWE) offered a great deep-dive into the healthcare-specific points in the EO, including these important milestones:
Protecting Consumers, Patients, Passengers and Students
Within 90 days of the EO’s publication, the HHS Secretary is required to establish an HHS AI Task Force.
Within one year of establishment, the Task Force is required to develop a strategic plan on policies and frameworks for the responsible deployment of AI in healthcare.
Within 180 days of the EO’s publication, the HHS Secretary is required todevelop a strategy to determine whether health AI technologies maintain appropriate levels of quality.
Within 365 days of the date of this order, the HHS Secretary is required to establish anAI safety programthat establishes acommon framework for approaches to identify and capture clinical errors resulting from AIdeployed in healthcare settings.
Promoting Innovation
Within 90 days of the EO’s publication, in coordination with the heads of agencies that the director of the US National Science Foundation (NSF) deems appropriate,launch a pilot program implementing the National AI Research Resource (NAIRR).
Within 540 days of the EO’s publication, the director of NSF should establish at leastfour new national AI research institutes and identify grantmaking opportunities to support responsible AI development and use.
As MWE put it, “This is a pivotal moment for AI governance. Many of the key, material details and AI governance standards will be developed during the next six months to one year. For organizations interested in developing or using AI or machine learning tools in healthcare, there will be far-reaching implications as new standards, compliance expectations, and other guidelines emerge.”
Controlled Substance Flexibilities
Also of note in October 2023, the Drug Enforcement Agency (DEA) and the Department of Health and Human Services (HHS) once again extended flexibilities related to the prescription of controlled substances via telehealth through the end of 2024.
A practitioner can prescribe a controlled substance to a patient using telemedicine, even if the patient isn’t at a hospital or clinic registered with the DEA.
Qualifying practitioners can prescribe buprenorphine to new and existing patients with opioid use disorder based on a telephone evaluation.
As reported by Healthcare Dive, this marks the second extension of relaxed prescribing rules, making it possible for clinicians to prescribe drugs like opioid use disorder and ADHD medications without first conducting an in-person evaluation.
With many of the telehealth flexibilities enacted during the pandemic set to expire at the end of next year, 2024 is “shaping up to be the Super Bowl for telehealth,” as Kyle Zebley, the American Telemedicine Association (ATA) senior vice president for public policy and executive director of ATA Action, put it.
During the hearing, four healthcare providers working in telehealth offered expert witness testimonies outlining essential flexibilities to make permanent:
Allowing video visits for all conditions for all Medicare beneficiaries.
Allowing physicians to provide care and services to patients via audio-only modalities.
Expanding beyond qualified healthcare centers to allow licensed physical therapy, occupational therapy, and speech-language pathology practitioners to utilize telehealth services.
Opinions still differ on the future of telehealth payment parity. Some recommend reimbursing telehealth services at a lower rate to avoid market distortions while others argue that providers will cease offering these services without parity. As the Center for Telehealth and e-Health Law (CTeL) put it in a recent summary of the hearing, “Oftentimes, without the option of services provided via telehealth, patients are left with the “choice” of no care at all. Which isn’t really a choice at all.”
The announcement came on the heels of the December 2022 passing of the Consolidated Appropriations Act of 2023, the 2023 omnibus spending bill that extends many – but not all – of the telehealth flexibilities introduced during the pandemic.
In light of these developments, here is a breakdown of how the telehealth policy roadmap is shaping up for the next two years.
Permanent Telehealth Changes for Medicare Patients
Removal of geographic restrictions for the delivery of behavioral telehealth services to patients, including coverage of both in-home and audio-only services.
Temporary Telehealth Extensions (Through December 31, 2024)
Healthcare providers may continue to bill Medicare for telehealth services authorized in the Calendar Year 2023 Medicare Physician Fee Schedule with no geographic restrictions, including engagement in the patient’s home and with audio-only communication accepted for select services.
FQHCs and RHCs may act as distant-site providers of non-behavioral telehealth.
Removal of in-person visit requirements for behavioral telehealth.
Expansion of telehealth coverage to include physical therapy, occupational therapy, and speech-language pathologist services.
Extended coverage of Acute Hospital Care at Home care models.
Approval of the use of telehealth to recertify patient hospice eligibility.
Telehealth Flexibilities Expiring at the End of the PHE (Through May 11, 2023)
Use of non-public-facing applications to communicate with patients without risk of federal penalty if the application is not HIPAA compliant.
Telehealth’s protection as an excepted benefit.
Worth noting: In February 2023, House representatives introduced the bipartisan Telehealth Benefit Expansion for Workers Act, which aims to provide American workers with access to employer-sponsored standalone telehealth benefits that are separate from traditional health plans, similar to how vision and dental plans operate.
Provider ability to prescribe controlled substances without an in-person examination.
Worth noting: A February 2023 proposed rule by the Substance Abuse and Mental Health Services Administration (SAMHSA) and the Department of Health and Human Services is seeking to permanently allow providers to prescribe buprenorphine for opioid use disorder treatment without the requirement of an initial in-person visit.
These changes focus on putting safeguards around telehealth. Additional regulatory efforts are expected ahead of the waiver extension expiration on December 31, 2024.
In the meantime, two additional questions remain on the future of telehealth:
1) How will interstate telehealth services play out when temporary geographic flexibilities expire at the end of 2024?
Interstate telehealth services were temporarily allowed across state lines during the PHE, waiving state licensure requirements. As of February 7, 2023, 21 U.S. states have solidified interstate telehealth as a permanent or long-term option. You can learn more about state-by-state variation in telemedicine restrictions here.
2) Will payment parity for home-based telehealth services stick beyond 2023?
Flexibilities introduced during the pandemic reimburse telehealth visits with patients at home at a rate that is on par with in-person visits. As Healthcare Finance News reports, the current telehealth payment parity runs through the end of 2023. The annual physician fee schedule set by CMS will determine whether payment parity for home-based telehealth services will be extended into 2024. The 2024 draft proposal is anticipated in July 2023. Among commercial insurers, it’s estimated that roughly half of U.S. states have passed payment parity laws.
Three Legislative Efforts to Secure Telehealth’s Trajectory
Telehealth industry experts and advocates recently gathered in Washington, D.C., for the Center for Telehealth and e-Health Law’s (CTeL) 2022 Spring Summit. The biannual event brings together providers, government officials, law firms, universities, insurance companies, investors, and other industry stakeholders to share strategic guidance and tactical tools for navigating changing legal and regulatory issues related to telehealth. Founded in 1995, CTeL is a nationally recognized non-profit research organization focused on telemedicine and virtual care.
Rayburn House Office Building
Over the course of this year’s Spring Summit sessions, three pieces of legislation were highlighted that could significantly influence the trajectory of telehealth. Caregility Clinical Program Managers Donna Gudmestad and Irene Goliash were among those invited to attend the event, where they examined trends and shared their perspectives as experienced nurses and clinical implementation professionals. They summarize key points on three recently introduced telehealth bills here.
Permanently lift geographic and site-based restrictions so Medicare beneficiaries can use telehealth in the comfort and convenience of their own home or at designated health facilities offering telehealth, regardless of their zip code.
Support the adoption of telehealth in underserved communities by ensuring Federally Qualified Health Centers, Rural Health Clinics, Indian Health Service facilities, and Native Hawaiian Health Care Systems can furnish telehealth services.
Provide a two-year temporary extension of COVID-19 emergency telehealth waivers, including permitting providers like Speech Language Pathologists, Occupational Therapists, and Physical Therapists to furnish telehealth services; enabling Critical Access Hospitals to continue providing outpatient behavioral therapy services through telehealth; and permitting payment for appropriate audio-only services.
Promote program integrity with guardrails for a small subset of telehealth services that have been targets of fraud without limiting patients’ access to care. The bill would require an in-person appointment within six months prior to ordering high-cost durable medical equipment (DME) or high-cost clinical laboratory tests. The legislation also authorizes CMS to audit outlier physicians ordering DME and lab tests at high rates and recover fraudulent payments. Finally, CMS will track who is billing for DME and lab tests by requiring providers to use their own National Provider Identifier when billing Medicare for a telehealth service.
Improve disaster preparedness by providing broad authority for CMS to authorize telehealth flexibilities during future emergencies.
H.R. 4058: Telemental Health Care Access Act of 2021
Remove the statutory requirement, Section 123 of the Consolidated Appropriations Act of 2020, that Medicare beneficiaries be seen in-person within six months of being treated for mental and behavioral health services through telehealth.
Require the Secretary of the Department of Health and Human Services to submit a report to Congress on the utilization of mental and behavioral health services furnished through telehealth within one year of the termination of the Federal Public Health Emergency.
Provide additional funding to HHS’ Office of the Inspector General to conduct audits, investigations, and other oversight and enforcement activities related to telehealth.
Provide a two-year temporary extension of the Acute Hospital Care at Home COVID-19 waiver brought on by the pandemic.
Require the Secretary of the Department of Health and Human Services to conduct an evaluation of the Acute Hospital at Home and Hospital Without Walls waivers and issue a report with recommendations for legislation to make the waivers permanent.
Recommendations and Next Steps
CTeL,whose staff and stakeholders regularly engage with congressional offices and members of the Executive branch to discuss the impacts of federal telehealth policy, supports the three legislative initiatives. They encourage Congress to permanently lift geographic and site-based restrictions so Medicare beneficiaries can continue to use telehealth regardless of their zip code. They also endorse the provision of a two-year temporary extension of COVID-19 emergency waivers as Congress works towards a permanent solution, to allow CMS to continue to collect data on telehealth cost, utilization, services provided, and access.
Additional recommendations are that Congress work towards a bipartisan solution to ensure that individuals in rural and underserved areas continue to receive access to telemental health services without burdensome requirements. CTeL also advocates for a temporary two-year extension of Acute Hospital at Home waivers. They recommend that the Secretary of HHS evaluate the program and produce a report with legislative recommendations to permanently allow acute-level care to be furnished and reimbursed in the home via telemedicine.
You can help advocate for these telehealth initiatives by contacting your Congressional representative. Research into the efficacy of telehealth programs will undoubtedly impact the fate of these bills and others like them, as well.
Donna GudmestadIrene Goliash
“Consensus on both sides of the aisle is that telemedicine is essential,” said Goliash. “It’s important that the Congressional Budget Office and we as stakeholders have a good understanding of why these issues matter and how to appropriately allocate funding. CTeL’s support of ongoing research into the needs, costs, risks, and ROI associated with telehealth and virtual care will help to further quantify impact.”
“CTeL has done a tremendous job bringing together organizations focused on telemedicine in support of initiatives that affect not only the deliverers of virtual care but the patient recipients who benefit from it across the country,” noted Gudmestad. “Their bipartisan approach to ensuring that access to care remains in place for everyone is admirable. Now we need everybody’s support to keep telehealth momentum moving forward. Why go back to something less efficient?”
Big Questions in Telehealth Policy
Regulatory waivers for telehealth services began after theDepartment of Health and Human Services (HHS) declaredthe first COVID-19 Public Health Emergency (PHE)on January 27, 2020. Relaxing restrictions around reimbursement, provider licensing, and HIPAA requirements supported contact-free care and remote patient monitoring. It also made quality healthcare available to Americans in rural areas and other underserved communities. The combination of pandemic circumstances and regulatory waivers contributed to the rapid growth of telehealth utilization by providers and patients of large health systems and smaller practices across the country.
Although utilization has fallen since the height of the pandemic, telemedicine has become an integral aspect of patient-centered care. Unless new laws are put in place, pre-pandemic Medicare telehealth laws will be restored when the PHE expires. The previous regulations date to theBalanced Budget Act of 1997, when the healthcare landscape looked very different and connected health technology was in its infancy.
Since late 2020, bipartisan groups of federal lawmakers have, overwhelmingly, called for regulatory changes and introduced legislation designed to keep many telehealth services accessible past the current pandemic. At the State level, private payer mandates and out-of-state provider licensing requirements continue to evolve.
HHS againextended the PHE in January, now set to end on April 16, 2022. But the PHE will probably expire sooner rather than later. Current federal and state initiatives will determine what the post-pandemic telehealth regulatory landscape looks like as COVID-19 is treated as endemic in the U.S.
Federal Telehealth Regulatory News
Lawmakers and Advocacy Groups Take Action
On January 28, Senators Brian Schatz (D-Hawai‘i) and Roger Wicker (R-Miss.)sent a letter to Senate and House leadership. Signed by 45 members of Congress, the letter calls for an extension of the telehealth services expanded by the COVID-19 PHE.
A few days later, theAlliance for Connected Care, the American Telemedicine Association, and HIMSSco-led another letter, signed by 336 organizations. The letter urges Congress to extend current telehealth waivers through December 31, 2024. It also asks Congress to analyze the impact of telehealth and to subsequently pass and implement permanent telehealth legislation by the end of 2024.
CY2022 Medicare Physician Fee Schedule
Released on November 2, 2021, and updated January 14, 2022, the 2022 Medicare Physician Fee Scheduleextends coverage for some telehealth services through 2023. It includes a permanent extension of virtual mental and behavioral health care, allows mental health services via audio-only technology, and qualifies rural health centers (RHCs) and federally qualified health centers (FQHCs) to provide virtual mental health visits.
Recently-Introduced Federal Telehealth Bills
Telehealth Extension and Evaluation Act (2/7/22)
Introduced by Senators Catherine Cortez Masto (D-NV) and Todd Young (R-IN),this bill would extend some waivers for two more years and expand Medicare telehealth payments. It also lifts geographic restrictions, so patients don’t have to live in a specific area to access virtual care. The bill includes a commission to study the impact of telehealth flexibilities during the pandemic.
Cures 2.0 (11/15/21)
Reps. Diana DeGette (D-CO) and Fred Upton (R-MI) introduced this 173-page bill, that would facilitate biomedical research and the delivery of groundbreaking treatments and healthcare innovations.Cures 2.0would expand access to telehealth services under Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). It removes location restrictions, requires coverage for more healthcare providers and services, and permanently allows hospice face-to-face recertification via telehealth.
Expanded Telehealth Access Act (11/5/21)
This bill, introduced by Senators Jerry Moran (R-Kan.), Steve Daines (R-Mont.), Tina Smith (D-Minn.), and Jacky Rosen (D-Nev.),would make Medicare reimbursement permanent for telehealth servicesprovided by physical therapists, audiologists, occupational therapists, and speech-language pathologists.
CONNECT for Health Act (4/29/21)
First introduced in 2016, Senator Brian Schatz reintroduced the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for the Health Act of 2021 last spring. This popular bill proposes removing all geographic restrictions on telemedicine services and permitting federally qualified health centers, rural health clinics, Indian Health Service, and Native Hawaiian healthcare facilities to provide virtual care. It also allows virtual recertification of hospice beneficiaries and several other provisions.
State Telehealth Regulatory Summary
Medicaid Reimbursement Policies
Medicaid programs in all states and the District of Columbia currently reimburse for live video services. Some state Medicaid programs cover remote patient monitoring and other connected care applications.
Private Payer Reimbursement
Forty-three states and Washington, D.C. now require private insurers to reimburse for telehealth services if they cover the same service in person. A2021 study by Foley & Lardnershowed that 22 states now mandate payment for specific telehealth services, up from 16 in 2019.
Payment Parity
Many states with specific telehealth mandates also require payment parity, meaning providers must be reimbursed the same amount whether a service is provided in person or virtually. Payment parity is a controversial issue. Advocates argue that it incentivizes providers to utilize and invest in virtual care technology, while critics believe such mandates undermine cost savings.
State Telehealth Waivers
As of January 19, COVID-19 telehealth waivers currently remain in place in 23 states. Many of these include licensing waivers so providers can provide virtual care to patients in other states.
An alternative to legislation, theInterstate Medical Licensure Compactexpedites the licensing process so physicians can practice in multiple states. Thirty-four states, D.C., and Guam currently participate in the Compact.
Conclusion
These state and federal policy initiatives aim to make the benefits of virtual care readily available to providers and patients for the foreseeable future, however COVID waxes and wanes. Time will reveal which current bills can withstand the legislative process, but there’s no doubt that permanent changes to national and regional telehealth laws are coming soon.
For a list of the most recent developments in federal and state telehealth policy, see thisexecutive summaryor visitthis trackerfor state-by-state telehealth policy information.
In the meantime, virtual care continues to expand and improve within the current policy framework. Caregility’s HIPAA-compliant, end-to-end solutions increase access and streamline continuous and intermittent patient observation, patient check-ins, assessments and specialty consults, care team planning and coordination, and managing patients through transitions of care. Caregility’s suite of innovative tools can enable and support any virtual care program. To learn more,visit our solutions page.
