Telehealth Policies, Regulations Remain Inconsistent Across States

Assessing the ongoing evolution of telehealth policies and regulations, a recent report from the Commonwealth Fund described how rules vary between different US states, resulting from states’ unique experiences early in the pandemic.

At the beginning of the COVID-19 pandemic, most in-person care services were restricted as lockdowns proliferated across the country. As a result, providers began to use virtual care to maintain patient care while ensuring safety from the fast-spreading novel coronavirus. 

However, as the severity and number of COVID-19 cases began to diminish, questions regarding the regulatory flexibilities related to virtual care began to arise. These flexibilities were enacted in response to the pandemic. Several stakeholders have submitted requests for telehealth waiver extensions.

For example, in September, a letter from the American Telehealth Association requested that the US Senate approve a two-year extension of these flexibilities to allow further telehealth use. Signed by 375 healthcare stakeholders, the letter expressed concern over a forced return to in-person care while making it known that many patients benefit from telehealth.

A newly unveiled year-end package includes two-year extensions for telehealth flexibilities for Medicare beneficiaries, but the legislation has yet to pass through the chambers of Congress. Specifically, the bill would extend flexibilities such as eliminating geographic restrictions, allowing Medicare beneficiaries to obtain care from any location, and permitting federally qualified health centers and rural health centers to continue using telehealth.

However, telehealth policy at the state level remains a patchwork of rules and allowances.

The report from the Commonwealth Fund detailed state legislation enacted since March 2021 and reported that many states have taken more nuanced routes with regard to telehealth regulations, likely influenced by their early pandemic experiences.

The report indicates that more states permit telephone-only telehealth visits than before the pandemic. At least 20 states changed their policies to allow or require telephone visit coverage, noting that these types of visits were needed to connect with the 42 million people who do not have broadband access, as well as with those who lack devices for video visits, and those who are unfamiliar with video technology.

The report also detailed the positive impact telehealth has on access to behavioral health services, as 40 percent of behavioral health visits during the pandemic occurred through telehealth.

For some states, the dominance of telehealth in this specialty led to action. For example, Nebraska and Arizona made an exception for behavioral health services when creating laws restricting telephone visits.

Although telehealth can be convenient, many patients still prefer in-person visits. Thus, many states have worked to protect patient access to providers. Illinois and Oregon, for example, established legislation that forbids insurers from requiring patients to use telehealth for people who indicate a preference for in-person visits.

Health equity is also a factor that many states are considering, largely because telehealth can come up short in this arena. Oregon established a law that requires insurers to assist those who need accommodations due to disability, age, or limited English proficiency in accessing telehealth.

The report also noted that many states are beginning to pay closer attention to how telehealth affects the healthcare system. Initially, data related to the effects of telehealth on services, cost, and utilization was sparse. However, through recent law changes, states are requiring more data reporting. Many states plan to use this data to optimize telehealth availability and use.

Similarly, a report released in October by the Bipartisan Policy Center (BPC) aims to support future telehealth regulations by detailing Medicare usage trends and providing recommendations for policymakers.

The BPC described the impact of regulatory flexibilities in the report while gathering data on demographics and the types of virtual care channels patients prefer. The BPC also provided recommendations for future telehealth policy under four sections: foundational, behavioral health, primary care, and other specialty services.