Signed by more than 35 Senators, the letter to HHS and CMS officials asks for ‘a written plan and timeline for permanent administrative changes to Medicare rules governing the provision of telehealth.’

By Eric Wicklund

July 07, 2020 – Congress is ratcheting up the pressure on the federal government to explain when and how it will rule on extending telehealth access and coverage past the coronavirus pandemic.

In a letter sent last week to leaders at the Health and Human Services Department and the Centers for Medicare & Medicaid Services, more than 35 Senators asked for more details on addressing the extension of telehealth freedoms, most of which are scheduled to end with the state of emergency caused by COVID-19.

“We appreciate your commitment to making these temporary telehealth flexibilities permanent – most recently with the proposed rule to permanently extend telehealth changes under the home health benefit – and  ask you to provide Congress with a written plan and timeline for permanent administrative changes to Medicare rules governing the provision of telehealth,” the letter states. “We further request that you provide Congress with a list of telehealth changes that will require Congressional action.”

Specifically, the Senators are calling on HHS Secretary Alex Azar and CMS Administrator Seema Verma to:

  1. “Provide a written plan and timeline for making permanent the administrative changes – including the expansion of the definition of telecommunications systems—you have made to Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) rules governing the provision of telehealth under Section 1135 Waivers. This plan should include sufficient public notice and comment periods in order to ensure that these permanent changes are not at the expense of access for patients in rural or underserved communities, patient privacy, protections against fraud, waste, and abuse, or quality of patient care.”
  2. “Provide a timeline for if and when you intend to end enforcement discretion by the (HHS) Office for Civil Rights (OCR) for non-compliance with the Health Insurance Portability and Accountability Act (HIPAA) so that health care providers and patients have a reasonable expectation as to when the use of everyday technologies may be discontinued. In addition, perform an analysis of the non-HIPAA compliant platforms used during the pandemic and report to Congress their impact on providers, consumers, and patient data security.”  
  3. “Clarify whether you intend to extend existing in-office Medicare reimbursement parity to telehealth services provided by Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) for the duration of the pandemic or whether doing so would require Congressional action.” 
  4. “Detail the list of permanent telehealth changes to Medicare, Medicaid, and CHIP rules that you can act on within your own authority and those that require Congressional action;” and
  5. “Develop and issue guidance for private health plans to provide advance notice to their enrollees on future changes to coverage of telehealth services.”

The letter was signed by Senators Bill Cassidy (R-LA), Tina Smith (D-MN), Michael Bennet (D-CO), Marsha Blackburn (R-TN). Patrick Leahy (D-VT), Cory Gardner (R-CO), Angus S. King, Jr. (I-ME), Lisa Murkowski (R-AK), Robert P. Casey, Jr. (D-PA), John Boozman (R-AR.), Jacky Rosen (D-NV), Cindy Hyde-Smith (R-MS), Bernie Sanders (I-VT), Shelley Moore Capito (R-WV), Amy Klobuchar (D-MN), Ted Cruz (R-TX), Richard Blumenthal (D-CT), John Thune (R-SD), Elizabeth Warren (D-MA), Todd Young (R-IN), Dianne Feinstein (D-CA), Steve Daines (R-MT), Benjamin L. Cardin (D-MD), Kelly Loeffler (R-GA), Tammy Baldwin (D-WI), Marco Rubio (R-FL), Chris Van Hollen (D-MD), David A. Perdue (R-GA), Kamala D. Harris (D-CA), Mitt Romney (R-UT), Cory Booker (D-NJ), Lindsey Graham (R-SC), Jeffrey A. Merkley (D-OR), Joni Ernst (R-IA), Edward J. Markey (D-MA), Dan Sullivan (R-AK), John Hoeven (R-ND) and Pat Toomey (R-PA). 

Congress is also under pressure to address telehealth expansion. Roughly two weeks ago, Congressional leaders received a letter signed by more than 340 organizations, healthcare providers and connected health advocates asking them to address the same issues they’ve asked HHS and CMS officials to address.

“Given the statutory restrictions in Section 1834(m) of the Social Security Act and that the authorities granted to HHS and CMS through recent coronavirus legislation are limited to the COVID-19 public health emergency period, Congress must act to ensure that the Secretary has the appropriate flexibility to assess, transition, and codify any of the recent COVID-19-related telehealth flexibilities and ensure telehealth is regulated the same as in-person services,” that letter states. “Congress not only has the opportunity to finally bring the US healthcare system into the 21st century, but the responsibility to ensure that billions of dollars in COVID-focused investments made during the pandemic are not wasted and instead used to support the transformation of care delivery and ultimately, expand access to high quality virtual care to all Americans.”

The letter was signed by, among others, the Alliance for Connected Care, American Telemedicine Association, College of Healthcare Information Management Executives (CHIME), Consumer Technology Association, eHealth Initiative, Global Partnership for Telehealth, Healthcare Information and Management Systems Society (HIMSS) and The Joint Commission.

Telehealth advocates may not have to wait too long to see where CMS is headed.

In a panel session during last month’s ATA virtual conference, Emily Yoder, an analyst in CMS’ Division of Practitioner Services, said Congress has the authority to make policy changes, while CMS must focus on regulatory changes.

Yoder said CMS expects to file proposed regulatory changes for Medicare coverage of telehealth ithis month in the Federal Register, and urged telehealth providers and advocates to be ready to comment on the proposals.

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