As most are aware, the telehealth industry has experienced a major expansion during the COVID-19 pandemic. The volume of telehealth claim lines in April 2020 alone reportedly increased more than 8,000% versus April of 2019, based on privately-billed medical and dental claim records alone. In anticipation of this surge and to accommodate it, Congress, the U.S. Department of Health and Human Services (HHS), and other federal agencies provided a variety of critically important legal and regulatory waivers and flexibilities to facilitate this expanded use of telehealth during the pandemic. Such measures include, among others:
Although these measures have eased the use of telehealth during the pandemic, providers should remember that, at present, they remain temporary and will expire once the current public health emergency ends. Fortunately for the near term, HHS has renewed the public health emergency, which had been set to expire on July 25, 2020, for another 90 days.
Further, as discussed in prior updates, Centers for Medicare and Medicaid Services (CMS) Administrator Seema Verma has repeatedly demonstrated her desire to make many of the above telehealth waivers permanent. In a recent Health Affairs blog post, Administrator Verma highlighted CMS’ and HHS’ efforts before and during the pandemic to expand access to telehealth. She also reported on a number of trends evidenced by Medicare claims data, including the fact that approximately 1.7 million Medicare beneficiaries received telehealth services during the last week of April 2020 versus 13,000 beneficiaries per week before the pandemic.
Administrator Verma reiterated that CMS is reviewing temporary waivers to determine which can and should be made permanent through regulatory action. She emphasized that this work includes examining whether and when an existing practitioner-patient relationship should be required, payment rates for services provided via telehealth (including examining costs of telehealth versus in-person care), and how to extend waivers while protecting against fraud and abuse. As this work continues, it is possible we may see some related regulatory action in CMS’ forthcoming Medicare physician fee schedule and outpatient prospective payment aystem rules. CMS has already proposed to make some telehealth regulatory flexibilities for telehealth permanent in its CY 2021 Home Health Proposed Rule.
Notwithstanding these potential regulatory developments, it is important to bear in mind that many pandemic-related waivers address statutory rather than regulatory restrictions, and statutory restrictions cannot be changed or removed without further action by Congress. Of course, Congress is aware of this and is considering a number of legislative proposals. As one example, the members of the Congressional Telehealth Caucus recently proposed the Protecting Access to Post-COVID-19 Telehealth Act, which focuses on:
As another similar example, Republicans on the House Ways and Means Committee recently released a discussion draft of a bill under the heading “Keeping Medicare Patients’ Improved Access to Care Through Telehealth.” In its current form, this bill would, among other things: