In response to the pandemic, the U.S. Department of Health and Human Services has issued waivers permitting reimbursement for telehealth visits, the waiver of certain copayments and relaxed technology requirements. As Senate Health, Education, Labor and Pensions Committee Chairman Lamar Alexander, R-Tenn., recently stated, the health care sector and government “have been forced to cram 10 years’ worth of telehealth experience into just the past three months.”[1]

The Centers for Medicare & Medicaid Services recently finalized a policy, proposed prior to the pandemic outbreak in the U.S., that demonstrates how network adequacy standards can facilitate the advancement of telehealth while ensuring adequate networks and access to care.

The incorporation of telehealth into network adequacy standards presents an opportunity to expand access to care for traditionally vulnerable populations and better integrate them into the American health care system. However, an overcorrection could have the unintended effect of reinforcing and exacerbating impediments to care for these communities.

The facilitation of telehealth through quantitative network adequacy standards has the potential to ensure access to specialized care within a plan’s network without requiring enrollees to even leave their homes. Vulnerable populations face significant challenges just to get to the physician’s office, including impediments to travel, taking time off from work and financial burden.

As Colorado Gov. Jared Polis recently stated, “[i]t’s more convenient, it’s safer because you don’t have to put people at risk of contracting Covid by going out, and it saves money on health care.”[2] In short, CMS’ recently finalized policy may offer the correct balance of progressive incorporation of telehealth into network adequacy standards to encourage greater adoption and utilization without sacrificing access to necessary in-person care. It may also demonstrate how health plans can expand telehealth offerings while concurrently improving access to care to vulnerable communities.

Network Adequacy Standards

According to a CMS rule, network adequacy rules “protect beneficiaries by ensuring that most, if not all, of the beneficiaries enrolled in a plan have access to providers within a reasonable time and distance from where the beneficiaries reside.”[3] In the case of Medicare Advantage, CMS requires that Medicare Advantage organizations contract with a sufficient number of providers and facilities to ensure that 90% of beneficiaries have access to certain provider and facility types within maximum time and distance standards.

Historically, states have regulated the adequacy of health plan networks in the commercial market. The Affordable Care Act provided the first federal network adequacy standard for commercial plans, though the corresponding regulatory requirements have become less protective of consumers during the Trump administration.

The 2016 Medicaid and Children’s Health Insurance Program managed care final rule required states with a managed care plan to implement network adequacy standards.[4] As a result, the incorporation of telehealth in Medicaid coverage varies by state Medicaid program.

CMS recently reiterated: “States have a great deal of flexibility with respect to covering Medicaid and CHIP services provided via telehealth.”[5] Because over 75% of Medicaid beneficiaries are enrolled in managed care,[6] network adequacy standards are critical to ensuring access to appropriate care.

In turn, network adequacy standards are only as strong as the will of regulators to enforce them. The telehealth credit policy implemented by CMS, discussed below, could be easily replicated, with the same potential upside for enrollees, under any of these regulatory schemes.

How CMS Incorporated Telehealth in Network Adequacy

On June 2, CMS finalized a change to network adequacy standards in Medicare Advantage by incorporating a 10% credit toward the percentage of beneficiaries residing within time and distance standards for certain specialty types when a plan contracts with telehealth providers.[7] While this may not seem audacious, it has the potential to demonstrate how slight changes in network adequacy standards can encourage the dual goals of expanding telehealth and concurrently improving access to vulnerable communities.

It is also notable due to the ever-increasing number of beneficiaries enrolling in Medicare Advantage plans. In 2020, 36% of beneficiaries are enrolled in Medicare Advantage plans and the Congressional Budget Officeestimates close to 51% will choose Medicare Advantage by 2030.[8] CMS should not only be applauded for innovatively using network adequacy standards to advance these goals, but encouraged to expand such an approach if it shows initial success.

While Medicare Advantage plans were permitted to offer expanded clinically appropriate telehealth benefits in 2020, this small modification to network adequacy standards may expand access to plans and correspondingly increase enrollment.[9] CMS states that the final rule intends to improve access to Medicare Advantage plans “where network development can be challenging” through contracting with certain telehealth specialty types and reducing the time and distance standards in nonurban counties.[10]

In the final rule preamble CMS responded to comments that this policy would come at the expense of in-person care by stating that “this approach appropriately incentivizes MA organizations to contract with providers that offer additional telehealth benefits and maintains standards that ensure that in-person providers are within a reasonable time and distance for most beneficiaries.”[11]

CMS previously contemplated the potential benefits of telehealth in addressing challenges in meeting quantitative network adequacy standards in the Medicaid managed care proposed rule published in November 2018. In preamble text CMS acknowledged the possible value of telehealth in addressing provider availability.

For example:

A state that has a heavy reliance on telehealth in certain areas of the state may find that a provider to enrollee ratio is more useful in measuring meaningful access, as the enrollee could be well beyond a normal time and distance standard but can still easily access many different providers on a virtual basis.[12]

It remains to be seen whether CMS will attempt to implement a similar policy to incorporate telehealth through network adequacy standards in Medicaid managed care in future rulemaking.

Incorporating Telehealth to Benefit Vulnerable Communities

The inclusion of telehealth into quantitative network adequacy standards can encourage expanded access to telehealth while providing robust protections for access to in-person care and an appropriate range of provider types. In particular, such a policy could bolster inclusion of essential community providers in plan networks, which serve low-income and medically underserved populations.

This could further inclusion and provide greater equity, defined by the American Hospital Association “to mean that all individuals receive the tools and resources they need to achieve health and well-being”[13], for vulnerable populations. In particular, incorporating telehealth could benefit individuals with special needs.

According to the Centers for Disease Control and Prevention, 61 million Americans live with a disability.[14] Further, one in three adults with a disability do not have a usual health care provider and one in three adults with a disability have an unmet medical need because of cost in the past year.[15]

A major challenge for individuals with special needs is not just finding a provider, but finding a provider that appreciates the unique, and sometimes medically complex, needs of this population.[16] Telehealth provides the potential to ensure appropriate providers are more readily available and accessible to this population in plan networks, while reducing impediments to care including, but not limited to, transportation, accessibility and the burden on caretakers.

Despite the potential benefits of telehealth expansion, for certain populations, telehealth may not be an elixir to access problems. It is critical that legislators and regulators keep vulnerable populations in mind as they seek to facilitate and accommodate the expansion of telehealth. In particular, the promise of telehealth will not be realized without addressing the digital divide.

Historically, the digital divide has affected the same vulnerable populations that have encountered coverage and access disparities.[17] The Pew Research Foundation in 2019 found close to three in 10 adults with household incomes below $30,000 a year (29%) don’t own a smartphone and more than four in 10 don’t have home broadband services (44%) or a traditional computer (46%).[18]

An incorporation of telehealth at the expense of traditional adequacy requirements for in-person care will require addressing the digital divide that disproportionately affects vulnerable communities or risk exacerbating access to care challenges for this population.

Because a provider available via telehealth may be located significantly beyond traditional time and distance standards, another challenge is to ensure enrollees appreciate which providers are only available via telehealth. Where telehealth is not an option or where in-person care is necessary or preferred, safeguarding the maintenance of a network of appropriate providers will remain a delicate balance.

For instance, the recently published final rule fails to address how beneficiaries will know whether the included providers are available using telehealth. Medicare Advantage plans are typically required to include in a provider directory information regarding contracted providers, including the “number, mix, and distribution of all network providers.”[19] This important consumer protection does not yet address telehealth.

In closing, network adequacy can be a potent arrow in the government’s quiver of policy options to increase access to providers for vulnerable populations. The experience of patients, providers and insurers during the COVID-19 pandemic should instill confidence about incorporating telehealth into network adequacy standards and in turn extending additional coverage and access options for vulnerable populations.

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