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The Federal Trade Commission has offered its views on several proposals to expand Medicare and Medicaid coverage for telehealth services after the COVID-19 emergency is over. 

June 05, 2020 – The Federal Trade Commission is joining the groundswell of support for developing new CMS telehealth coverage policies beyond the coronavirus pandemic.

In a letter sent last month to the Centers for Medicare & Medicaid Services, FTC executives offered the agency’s take on several proposals to extend CMS directives issued during the COVID-19 emergency to expand telehealth access and coverage.

“Telehealth can potentially increase the supply of accessible practitioners and thereby enhance price and non-price competition, reduce transportation expenditures, and improve access to and choice of quality care,” the letter stated. “Many experts consider reducing restrictions on Medicare reimbursement of telehealth services especially important for fulfilling telehealth’s potential, not only because Medicare places substantial limitations on using telehealth services, but also because Medicare influences the reimbursement policies of state Medicaid programs and private payers.”

The letter was signed by Bilal Sayyed, director of Office and Policy Planning; Andrew Sweeting, director of the Bureau of Economics; Ian Conner, director of the Bureau of Competition; and Alden Abbott, the agency’s General Counsel.

Relaxation of distant site guidelines. CMS has used its waiver authority to allow Medicare coverage for telehealth services provided at any location, including metropolitan locations, health clinics and the patient’s home. Prior to COVID-19, CMS sharply restricted telehealth coverage to certain types of healthcare facilities.

“Although the public health emergency necessitated immediate removal of the geographic and originating site requirements, longstanding and broad support for eliminating these requirements existed before the pandemic,” the FTC noted. “These requirements preclude reimbursement for services provided to urban beneficiaries with limited access to in-person care because of mobility, economic, or other barriers, as well as rural populations who may live far from an authorized originating site. The requirements inhibit entry of telehealth providers and limit patients’ access to care and choice of provider. Accordingly, the requirements could limit competition among practitioners, potentially reducing the quality and amount of care and increasing its costs.”

“For these reasons, we strongly support suspending these requirements during the public health emergency, and we urge CMS to consider whether they should be permanently eliminated,” the agency concluded.

Expanding the types of services delivered by telehealth. During the pandemic CMS has added more than 80 healthcare services to its coverage guidelines, including ED visits, care delivered in a skilled nursing facility and health centers, ICU services and some homes-based care.

“Without this expansion of reimbursable telehealth services, it could be difficult or impossible to provide many of the newly authorized services safely,” the FTC points out. “By allowing practitioners to provide services remotely, especially in areas of need that are far away, the change likely increases beneficiaries’ access to needed care during the public health crisis. The change also could enhance the quality of services provided, increase competition, and reduce costs.”

“The expansion of reimbursable telehealth services during this public health emergency should highlight the benefits and drawbacks of using telehealth to provide different types of services,” the letter concludes. “As a result, CMS will be in a better position to decide whether to continue some or all of the added services after this emergency ends.”

Access to therapy services by more telehealth providers. CMS has opened the door to coverage of therapy services during the pandemic and given certain providers, including physical and occupational therapists, audiologists and speech-language pathologists, the green light to provide those services. The agency had to amend its initial action after it was pointed out that CMS first expanded coverage for those services but did not include therapy practitioners in the list of healthcare providers allowed to deliver those services.

“Based on its experience with reimbursing therapy practitioners for telehealth services during the current public health crisis, CMS should consider permanently adding these practitioners to the list of authorized telehealth providers,” the FTC advises. “There is longstanding support for Medicare reimbursement of therapy practitioners and other practitioners not ordinarily eligible for reimbursement of telehealth services. Making them authorized telehealth providers on a permanent basis could enhance the availability of therapists, access to care, choice of provider, competition, and quality, and also could reduce costs. Such improvements may especially benefit rural and underserved communities, as well as patients for whom travel is difficult.”

Coverage for new modalities. CMS has also expanded Medicare coverage to a broad range of modalities during the emergency, including audio-only telephone. Telehealth advocates have long argued that underserved population often lack access to the technology and/or the broadband connectivity needed to access telehealth.

“Allowing reimbursement for care provided by audio-only telephone as a telehealth service potentially increases access to safe and effective care and enhances competition among providers, especially in rural and underserved areas where access to audio/video devices and broadband service may be limited,” the FTC letter states. “We suggest that CMS consider whether such benefits support continuing telehealth reimbursement of audio-only telephone services after this crisis, or whether its experience with expanded telehealth reimbursement of these services reveals legitimate health and safety concerns that could justify discontinuing or narrowing such reimbursement after this public health emergency ends.”

Coverage for non-telehealth communication technology-based services (CTBS).During the current emergency, CMS has expanded the coverage umbrella to help providers connect with new patients through virtual check-ins, remote patient monitoring platforms and telephone services without the need to first conduct an in-person examination.

The guidelines were particularly challenging for direct-to-consumer telehealth platforms prior to COVID-19, in that providers had to first schedule an in-person exam to meet requirements of an established doctor-patient relationship before moving to a connected health platform. With the pandemic severely curtailing in-person visits, CMS relaxed those rules.

“FTC advocacy has favored flexible provisions that allow the licensed practitioner in the best position to weigh access, health, and safety considerations to decide whether to use telehealth,” the FTC says. “Such policies, which allow the patient-practitioner relationship to be established by telehealth and typically hold the practitioner to an in person standard of care, are supported by several physicians’ organizations.”

“We suggest that after the public health emergency ends, CMS consider allowing licensed practitioners to decide whether to provide at least some CTBS services to new as well as established patients,” the agency concludes. “This approach would better promote competition and access to safe and affordable care.”

Supervision guidelines under Medicare’s “Incident To” billing rules, when delivered via telemedicine. Finally, CMS relaxed its direct supervision guidelines for the duration of the emergency to allow Medicare coverage for services provided by non-physician practitioners, such as physician assistants and advanced practice registered nurse practitioners.

In its letter, the FTC recommends that CMS amend its rules to eliminate direct supervision of non-physician practitioners in non-institutional settings, and give that authority to the states.

“Eliminating Medicare’s direct supervision requirement could improve access to health care professionals and services, especially in health professional shortage and underserved areas,” the letter states. “Accordingly, we urge CMS to consider whether there are well-founded health and safety justifications for retaining the direct supervision requirement.”

“More generally, we recommend that CMS ask Congress to eliminate the ‘incident to’ billing provision, which is a vestige of a time when advanced practice registered nursing and physician assisting were nascent professions, and when state laws governing supervision of such practitioners were more restrictive,” the FTC concludes. “Instead, nonphysician practitioners should be required to bill Medicare directly. … Doing so could improve provider efficiency and beneficiary access to care and potentially reduce Medicare spending and beneficiary financial liability.”

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