How Telehealth Legislation Will Evolve During the Pandemic & Beyond

Despite numerous bills to solidify telehealth flexibilities enacted during the pandemic, none have passed in Congress, leaving the future of telehealth access and adoption uncertain.

By Anuja Vaidya

June 20, 2022 – The significant spike in the use of telehealth during the COVID-19 pandemic was made possible by numerous legislative waivers that were quickly enacted as in-person care stalled. Two years later, many of those flexibilities are still intact, but their future is unclear.

Three telehealth legislation experts — Jacob Harper, an associate with law firm Morgan, Lewis & Bockius, Christa Natoli, executive director of the Center for Telehealth and E-Health Law (CTeL), and Ben Steinhafel, policy director of CTeL — discussed the current regulatory landscape for telehealth at the federal and state levels on the Healthcare Strategies podcast.

At the federal level, several bills have been introduced to make permanent or extend flexibilities enacted during the pandemic, including the CONNECT for Health Act and Telehealth Extension Act. One of the key provisions in these bills is eliminating geographic restrictions on originating sites for telehealth services.

But none of these bills have passed yet, though Congress did extend telehealth waivers for Medicare beneficiaries for at least five months after the public health emergency officially expires.

“I think one of the things that’s been interesting to me is some of these bills have been sitting in Congress since the middle of 2020,” Harper said. “These bills already [have] a majority of the senators not just supporting but co-sponsoring the bills.”

Cost may be one of the factors blocking the passage of these bills. Lawmakers are still debating whether the costs associated with virtual care are additive, meaning that they increase the overall cost of care, or substitutive, which means they lower costs or keep them steady.

“That’s really the big thing…that’s holding Congress back from just saying, ‘Okay, let’s just run with these,'” Harper said. “Because I think there’s definitely a lot of bipartisan support.”

To buy more time to examine costs and other potential impacts of permanent telehealth expansion, Natoli believes that Congress may choose to extend the flexibilities for two years initially.

“It’s likely that they will probably move forward with some temporary solution, like a two-year extension,” she said. “They could have time to analyze some cost drivers as it applies to eliminating these originating site restrictions.”

At the state level, licensure hurdles are creating access barriers to telehealth, according to Steinhafel.

“That’s a big challenge for a lot of telemedicine platforms and vendor service providers that are trying to operate in several states — just being able to navigate that licensure process looks different in every state,” he said.

As public health emergency orders expire state by state, providers may need to undergo lengthy licensure procedures to continue providing virtual care to patients across state lines.

“I’m not sure that there’s a great federal solution for that, but it does take coordination among a lot of states,” Harper said.