Experts Weigh in on Post-COVID-19 Telehealth Rules and Policies

The ongoing coronavirus pandemic has pushed telehealth and mHealth to center stage as healthcare providers of all sizes look to provide care on virtual platforms. But the emergency – and the legislative and policy measures enacted to deal with it – won’t last forever.

So what happens to telehealth then? What does this impending “new normal” hold for connected health?

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With telehealth adoption at record levels and both providers and patients calling for continued coverage, federal and state governments are under pressure to make those emergency measures permanent. Congress is under particular pressure to pass laws expanding telehealth coverage, and the Centers for Medicare & Medicaid Services has signaled a willingness to review and likely revise its guidelines for Medicare and Medicaid coverage.

This Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) is conducting a hearing on telehealth lessons learned during the pandemic. The committee is scheduled to hear from Joseph Kvedar, president of the American Telemedicine Association (ATA) and a digital health expert with Boston’s Partners HealthCare Network; Karen S. Rheuban, director of the Karen S. Rheuban Center for Telehealth at the University of Virginia and a past ATA president; Andrea Willis, senior vice president and chief medical officer with BlueCross BlueShield of Tennessee, one of the first payers in the nation to make telehealth coverage permanent; and Sanjeev Arora, founder and director of the Project ECHO Institute at the University of New Mexico Health Sciences Center.

In addition, 29 Senators sent a letter to Congressional leadership this week asking that telehealth provisions in the CONNECT for Health Act and included in recent COVID-19 emergency measures be made permanent.

“Americans have benefited significantly from this expansion of telehealth and have come to rely on its availability,” the letter, dated June 15, reads. “Congress should expand access to telehealth services on a permanent basis so that telehealth remains an option for all Medicare beneficiaries both now and after the pandemic. Doing so would assure patients that their care will not be interrupted when the pandemic ends. It would also provide certainty to health care providers that the costs to prepare for and use telehealth would be a sound long-term investment.”

Here’s what a few of the experts and advocates are saying about specific connected health measures that should be extended.

“Before the pandemic, Medicare fee-for-service coverage of telehealth services was extremely restrictive, with limitations for rural locations, originating sites, eligible practitioners and services, and qualifying technology,” says Thomas J. Ferrante, senior counsel at the Foley & Lardner law firm. “The CARES Act allowed CMS to temporarily remove these requirements under broad waivers.”

Ferrante says both CMS and Congress will need to act.

“For example, removing the requirement that the patient be located in a qualifying originating site will require Congress to pass legislation amending the current statutory requirement,” he says. “Conversely, the amount of payment for telehealth services, and the specific CPT codes that will be paid by Medicare, can be adjusted by CMS without the Legislature’s approval.”

Ferrante notes that telehealth coverage has long faced an uphill battle, particularly with Medicare, because there hasn’t been enough evidence to prove the utilization improves clinical outcomes and drives down costs. Advocates are hoping to see that proof in how telehealth has been used during the pandemic, and US Rep. Robin Kelly has sponsored a bill calling for such a study – but that study wouldn’t be due back to Congress until the end of 2024, likely well after the bloom has faded and the momentum has waned.

“Notwithstanding, such opponents’ arguments, telehealth has become popular enough, and enough information may be gleaned from this pandemic experiment to garner the requisite bipartisan support,” Ferrante says. “Healthcare industry stakeholders should write and lobby members of Congress to make some telehealth waivers permanent through the next round of major coronavirus legislation under consideration. Similarly, stakeholders should provide their comments during the next release of proposed rulemaking by CMS.”

Nadia de la Houssaye, a partner with the Jones Walker law firm, says Congressional action on CMS’ telehealth coverage is “long overdue and critically important.” In particular, she’s looking at CMS guidelines that limit telehealth to rural areas and don’t allow coverage for telehealth in clinics, health centers or the patient’s home.

“Telehealth reimbursement should not be limited to a patient’s geographical location,” she notes. “CMS’ prompt action to lift originating site barriers played a significant role in provider adoption and usage of telehealth in the midst of COVID-19. …. All Medicare beneficiaries should have equal access to covered healthcare benefits, regardless of where and how care is delivered. Permanent removal of CMS’ pre-pandemic geographic and reimbursement barriers will ensure better and more affordable care to our nation’s most vulnerable population – the elderly and disabled.”

Four other topics are on de la Houssaye’s radar as well:

State licensure barriers: “State licensure laws have long been one of the greatest barriers to interstate telehealth expansion,” she says. “Not only is the licensure process expensive, timely and onerous, (but) regulations and policies vary across state lines. Post-COVID-19, re-evaluation at the state and federal level must occur to eliminate state licensure barriers.”

Options include have a state waive its licensure requirement if a provider has a license in another state, creating cross-border licensure waivers with neighboring and/or rural states or making the Interstate Medical Licensure Compact nation-wide -- though joining the compact expedites licensure but doesn’t eliminate all barriers.

At the federal level, de la Houssaye suggests legislation designating the provider’s location as the location in which care takes place for the purposes of licensure and payment. “Though states will likely resist such federal legislation, state licensing boards will nevertheless maintain control over issuing provider licenses located in the state, while allowing providers to treat patients remotely in other states,” she says. “Additionally, Congress could re-visit the TELE-MED Act of 2015, which would permit Medicare providers who are licensed in one state to provide telehealth services to Medicare patients across state lines and without the need for additional state licenses. Though removal of state licensure barriers will not happen overnight, it is essential to the future of telehealth.”

Broadband internet access: “Without fast and reliable access to high-speed broadband, telehealth is limited,” de la Houssaye points out. “To deliver on telehealth’s potential, adequate bandwidth must be available throughout the continuum of care. Congress and the FCC have accelerated efforts to address this infrastructure barrier through significant grant funding initiatives, including the COVID-19 Telehealth Program and the three-year Connected Care Pilot program. This federal funding not only recognizes the essential role telehealth will play post-pandemic, but more importantly the critical need for an infrastructure that will support its use.”

HIPAA, data security and privacy: “To protect patient privacy, it is important that HIPAA and data security measures return to post-pandemic levels and that emerging new technology platforms abide by these established regulations and standards,” de la Houssaye says. “Not only must platforms contain the requisite security measures, providers must be reminded that it is unacceptable to engage in a telehealth encounters in public or with family members in the same room.”

De la Houssaye has the anecdotes to back up those concerns. She says she’s seen a physician conducting a virtual visit while shopping at Target, and talked on the phone with a woman who had to speak softly to avoid disrupting her physician-husband’s telemedicine session in the living room.

Private payer reimbursement: de la Houssaye notes that states have enacted vastly different guidelines for private payer coverage. “State and federal action is needed to incentivize providers to continue telehealth usage post-pandemic,” she says. “While the federal government can promote telehealth by setting minimum coverage and reimbursement standards for Medicaid, state insurance regulators, Medicaid agencies and medical boards can all change rules for practice, coverage and reimbursement to promote greater use of telehealth services for those not insured through federal programs.”

Additionally, post-COVID-19 is a good time to evaluate alternative payment models that reward value in the remote delivery of services, rather than traditional fixed fee reimbursement,” she concluded.

Carrie Nixon, a healthcare innovation attorney and managing partner of the Nixon Law Group, sees two potential courses of action:

Incentivize provider adoption and implementation of telehealth and remote patient monitoring programs through a two-pronged approach. First, she says, Congress should pass legislation establishing a pool of funds available to providers across the entire spectrum of care, public and private, for exactly this purpose (similar to the HITECH Act). Second, CMS should use the carrot-and-stick approach under MACRA's Quality Payment Program, making implementation of a virtual care program a high-weighted "Improvement Activity" metric for providers in the MIPS track, and a requirement for all participants in the Advanced Alternative Payment Model track.

Finalize proposed changes to the fraud and abuse landscape to allow telehealth, RPM and other digital health companies to enter into previously prohibited business arrangements with providers to facilitate the transition to a true value/outcomes based model of delivery and reimbursement. For example, Nixon says, the proposed Patient Engagement and Support safe harbor should be finalized, allowing RPM companies to provide incentives to patients for adhering to their RPM program by taking a certain number of readings per month. And the proposed Care Coordination Arrangements safe harbor should be finalized to allow "in-kind remuneration" like sharing of staff between a provider and a vendor for RPM monitoring, allowing a vendor to provide devices to be used in conjunction with its telehealth platform for free to providers and others.

Also weighing in are government agencies like the Federal Trade Commission, which sent a letter in May to CMS listing six telehealth directives that should be extended beyond the pandemic.

“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.”

In addition, the ATA sent a letter to Congressional leadership in May outlining funding and policy changes that should be part of the next coronavirus relief package, with the goal of extending telehealth freedoms long past the current crisis.

The ATA’s letter listed nine recommendations:

1. Expand the Federal Communications Commission’s $200 million COVID-19 Telehealth Program to include for-profit hospitals and health systems and others not included in the pool, and add another $300 million to the pot.
2. Expand the FCC’s Health Care Connect Fund Program to include public, non-profit entities.
3. Increase funding for the Health and Human Services Department’s Public Health and Social Services Emergency Fund.
4. Provide a payroll tax credit for COVID-19 hospital facility expenditures, which often include the purchase of telemedicine equipment and additional telehealth training.
5. Amend Medicare Part B cost sharing to increase flexibility for telehealth use.
6. Have HHS forge an agreement with at least one eligible organization to collect, analyze and report on telehealth, digital health and remote patient monitoring metrics. That group should partner with stakeholders to analyze utilization, cost, access, experience data and identified structural and policy barriers to care.
7. Incorporate telehealth and RPM platforms into the National Health Security Strategy.
8. Prioritize telehealth policy and elevate the Office for the Advancement of Telehealth, which is currently categorized under the Office of Rural Health Policy in the Health Resources and Services Administration.
9. Address outdated 1834(m) restrictions on telehealth, perhaps by enacting the CONNECT Act for Health (S.2741 and HR.4932).