What the End of the PHE Means for Telehealth Policy
The Biden administration announced plans to end the COVID-19 public health emergency (PHE) on May 11, 2023, which carries implications for telehealth policy.
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
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.
- High deductible health plans may continue to waive patient deductibles for telehealth services without causing plan members to lose Health Savings Account (HSA) 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.
Additional Recommended Reading:
Telehealth Policy Updates
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.
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.
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.
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