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— Any meaningful reform will require action from congress

While the Trump administration has asserted that an executive order and a proposed rule issued this week will expand access to telemedicine for all Americans, outside experts say such promises won’t be realized anytime soon.

The executive branch lacks the needed authority on its own, they told MedPage Today, and the broad expansions sought by the White House could threaten patient privacy and even exacerbate health disparities.

Under the president’s national emergency declaration related to the COVID-19 pandemic, the administration has dramatically broadened the number of services that are allowed to be delivered via telehealth, the types of individuals able to receive those services, and the ways in which they’re delivered.

In addition to extending telehealth services, the president’s executive order also calls for HHS to review the temporary flexibilities related to “reporting, staffing, and supervision flexibilities offered to Medicare providers in rural areas” and propose a rule within 60 days to extend them.

Because of the COVID-19 pandemic and concerns about the risk of infection among those seeking in-person services, the Centers for Medicare and Medicaid (CMS) has allowed payment for 135 services to be provided through telemedicine.

But the emergency declaration comes with an expiration date and cannot be renewed indefinitely. In response to the president’s order, CMS is now proposing to making roughly seven of those service types permanent even after the pandemic ends.

“Specifically, we’re proposing to permanently add some services to the Medicare telehealth list, including prolonged office visits; mental health services, such as group psychotherapy; neuro-behavioral exams; and other types of visits,” CMS Administrator Seema Verma explained in a call with reporters earlier this week.

She noted that the administration had also proposed making telehealth for home health services “permanently available.”

President Trump also ordered the Department of Health and Human Services to improve healthcare access, both with and without telehealth, in rural areas:

  • With other agencies, develop a plan to improve the broadband infrastructure necessary to deliver telehealth essentially anywhere
  • Launch a new payment model that aims to transform rural health and incentivize a shift to “high-quality, value-based care”
  • Document policy initiatives that would increase healthcare access, reduce maternal mortality, prevent disease, and improve mental health in rural America

Before the health emergency, about 13,000 Medicare beneficiaries used telemedicine service in a week, Verma said. From mid-march to early July, more than 10.1 million beneficiaries have conducted a telemedicine visit.

Saul Levin, MD, MPA, CEO, and medical director of the American Psychiatric Association, lauded the actions in an email to MedPage Today. The group is pleased that the plan will “allow continued patient access to high-quality care via telehealth beyond the [public health emergency], and promote expanded broadband access in rural and remote communities.”

But Jacob Harper, an associate at Morgan Lewis in Washington, D.C., who advises hospitals, health systems, and large physician group practices, said these executive actions cannot permanently eliminate the existing statutory barriers to expanded telehealth.

The White House, the Department of Health and Human Services, and CMS have “gone as far as they possibly can right now. Congress has to act to remediate this,” Harper said.

“It kind of doesn’t even matter what codes CMS proposes to add, because at the end of the day, if we do go back to the pre-COVID landscape of telehealth, no one can take advantage of those services, practically speaking.”

Levin also stressed that congressional action is “vital” to enabling patients to access telehealth services from their homes and to eliminating geographic restrictions.

Anders Gilberg, senior vice president of government affairs for the Medical Group Management Association, agreed.

The two “major impediments” to telemedicine are geographic limitations — patients are only eligible if there’s a shortage of health professionals in their community — and originating site requirements which determine the setting from which a beneficiary must receive telehealth services.

While beneficiaries are temporarily able to receive telehealth services in their own homes, because of the public health emergency, under existing law that isn’t allowed, Gilberg said.

In addition, outside of a public health emergency, Medicare only pays for telehealth in rural areas, he noted.

Verma admitted as much on the press call and called on Congress to take action. “Without a change to the statute, telehealth will revert to a rural benefit that can only be utilized from a healthcare facility rather than from one’s home,” she said.

Gilberg also characterized CMS’ proposal as “rather modest” given that the agency chose to make only seven of the 135 services that they’re currently covering permanent.

“[T]here’s a lot of support for … the current rules under the public health emergency,” he said, and there’s a “general anxiety” that the public health emergency could, for political reasons be ended prematurely and “all of this will go away.”

While the executive order and proposed rules may not have a substantial impact on their own, said Harper, they do send a message that “telehealth will be around for the long haul and that there’s going to be some real change to the telehealth landscape.”

Privacy, Equity, and Costs of Care

“It’s no question that the availability of telehealth has really been a literal lifeline to many people who would otherwise go without medical treatment during the pandemic,” said David Lipschutz, JD, associate director for the Center for Medicare Advocacy.

“But, on the other hand, there have been some short-term problems that have emerged” related to waiver and flexibilities, he told Medpage Today. These could lead to longer term problems if the measure becomes permanent, he warned.

For instance, the HHS Inspector General told providers that they can reduce or waive cost-sharing during the pandemic. But Lipschutz said he had heard of beneficiaries being charged “when they were not so informed or when they were actually informed that they were not going to be charged.”

He’s also concerned about privacy protections, noting that Zoom and FaceTime weren’t designed to protect people’s individual private health information. Numerous reports of Zoom call “bombing” have emerged during the work-from-home surge.

More broadly, waivers and flexibilities around telehealth were granted as emergency measures in response to an emergency situation. Lipschutz said it was concerning that a “wholesale extension” of these measures is contemplated before their use is fully understood.

While some data have been released regarding visit volumes, information on who’s using the services and how effective they are is currently lacking.

Lipschutz said existing health disparities could be exacerbated as well, in light of the so-called digital divide.

People adept with the technology “can certainly benefit from telehealth, but there’s many people who don’t have such technology,” he said. “As more provider practices gear themselves towards practicing telehealth, some people will be left behind.”

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