How Telehealth Policy is Evolving at the State Level

The COVID-19 pandemic spurred telehealth use to new heights, with policy changes and flexibilities enacted at the state and federal levels supporting the rapid integration of telehealth into routine care delivery. But now, with the public health emergency ending on May 11, lawmakers are evaluating how telehealth policy needs to evolve to continue supporting the new normal in healthcare.

Various pieces of legislation have been introduced at the federal level to solidify telehealth policy, but many have yet to be voted on. Telehealth proponents scored a win when telehealth flexibilities for Medicare beneficiaries were included in the 2022 year-end spending bill, with provisions extending pandemic-era telehealth and hospital-at-home waivers for two years.

At the state level, telehealth policies have evolved quickly, creating a patchwork of laws governing virtual care. But these telehealth policy changes were largely tied to states' public health emergency declarations. As these expired, many states only temporarily extended telehealth flexibilities, leaving the future of state telehealth policy unclear.

"We're beginning to watch some of those states that might have provided a one-to two-year temporary extension of some of their public health emergency waivers as they're beginning to analyze costs and quality and utilization," said Ben Steinhafel, director of policy and external affairs at the Center for Telehealth & e-Health Law (CTeL), in a phone interview. "There will be a lot of opportunity in the coming years at the state level, as some of those one-to two-year telehealth extension policies are beginning to sunset."

Steinhafel, along with four telehealth policy experts, spoke with mHealthIntelligence about state telehealth policy, how it has evolved over the past three years, and what it could look like in the year ahead.

STATE TELEHEALTH POLICY DURING THE PANDEMIC

Telehealth policy at the state level has changed rapidly over the past few years as COVID-19 cases surged and fell.

"At the highest level, I think we've shifted from policy issues related to questions like, 'Is telehealth covered?' or 'In which locations can telehealth be provided?' to a kind of more advanced set of policy issues around what will coverage and reimbursement look like for non-video modalities? And how are we actually paying for really specific types of services and how do we enable providers to practice across state lines, but still maintain an ability for the state medical boards to play the role that they have," said Jared Augenstein, managing director of Manatt Health Strategies, in a phone interview.

One of the most significant changes to state telehealth policy amid the pandemic has been growing payment parity, that is, reimbursing services equally whether they are provided via telehealth or in-person. According to Augenstein, 21 states now have payment parity policies compared to about 10 in the late 2010s.

This is a major shift from pre-pandemic telehealth policy. Before the pandemic hit, coverage parity among states was fairly common, said Mei Kwong, executive director of the Center for Connected Health Policy, in an email. Coverage parity refers to payers covering the same services, whether they are delivered via telehealth or in-person. But this does not guarantee the services will be covered at the same payment rate. 

Now, with states moving toward payment parity, many are changing private payer laws to require the same reimbursement for virtual and in-person care, she said.

Another significant change in state telehealth policy relates to physician licensure.

State governments decide both who is licensed to deliver care within state borders and the board of medical professionals to whom the healthcare professional will be accountable, noted Kyle Zebley, senior vice president of public policy at the American Telemedicine Association (ATA) and executive director of ATA Action, in a phone interview.

During the pandemic, many states adopted licensure compacts allowing medical professionals to practice virtually across state lines, he said. These compacts covered various types of providers, including physicians, nurses, physical therapists, and psychologists.

But even though there was an uptick in the adoption of licensure flexibilities, there were signs of a return to pre-COVID licensure rules last year.

"In 2022, most states had ended their state of public health emergency, which is, for the most part, what those flexibilities were tied to," Augenstein said. "And I think now only seven states have any sort of ongoing telehealth licensure flexibility."

Alongside licensure flexibilities, states revised Medicaid policies to expand the list of providers who could be reimbursed for providing services via telehealth. The provider lists were expanded to include physical therapists and occupational therapists, Kwong said.

Not only that, but Medicaid programs also started reimbursing for care provided in the home supported by virtual care technologies.

"While before some Medicaid programs did allow some narrow exceptions for telehealth in the home, we're seeing more Medicaid programs expand or adopt home telehealth policies," she said.

Audio-only telehealth also experienced a significant boost from state policy changes in the last few years. According to a report from the Center for Connected Health Policy (CCHP) released last October, the Medicaid programs of 34 states and the District of Columbia reimburse for audio-only telehealth services.

"Prior to COVID-19, the use of audio-only would not have even been a part of the conversation for telehealth reimbursement," said Kwong. "That's been one, if not the most, significant policy change so far."

STATE TELEHEALTH POLICY IN 2023

The widespread changes to state policy undoubtedly spurred the adoption and use of telehealth across the country. But with many of these changes tied to states' public health emergency declarations — several of which have ended — states must decide what telehealth policy will look like moving forward.   

As discussed above, policies around cross-state licensure have been allowed to expire in certain states, suggesting a pull-back from pandemic-era flexibilities. But other policies, like payment parity, will likely see continued support at the state level.

Audio-only telehealth also appears to be on solid ground, particularly with ongoing broadband and internet connectivity issues that prevent people, especially those living in rural areas, from accessing video-based care.

"In many cases, there are still 20 to 30 million Americans who don't have access to broadband internet, and so really can't participate in a video visit," said Augenstein. "And in many cases from their home at least, audio-only is the only option… While the broadband access and affordability problem will hopefully get solved over the next few years, audio-only is a modality that more people are able to access. And so I expect to continue to see policy-making happening there."

But one area where the future remains uncertain is the virtual prescribing of controlled substances.

At the federal level, the Drug Enforcement Administration has jurisdiction over these prescribing rules. The agency recently proposed regulations limiting the virtual prescription of certain controlled substances without an in-person evaluation including Adderall and Ritalin. But these proposed rules do not extend to Schedule III-V non-narcotic controlled medications or a 30-day supply of buprenorphine for treating opioid use disorder (OUD).

Christa Natoli, executive director of CTeL, believes states may align their policies with these proposed rules.

"With the onset of certain companies that have made the news recently in the mental health space that may not have been prescribing controlled substances in an appropriate way, we may see a trend by states to be more restrictive, to be protective of their patients, [and] not [give them] inappropriate access to stimulants," she stated in a phone interview.

But telehealth proponents have decried the DEA's proposed rules, with the American Telemedicine Association stating that they are "significantly more restrictive than is warranted."  

"There's concern a lot of patients will be abruptly cut off from needed medication because, for the last few years, they've been treated by telehealth providers utilizing this [public health emergency] exception," Kwong said. "What happens to them is of great concern to many."

Not only that, but the prescription of abortion drugs via telehealth is also in flux. Providers offering abortion care increasingly turned to telehealth to ensure access following the overturning of Roe v Wade last year. And while some states supported this move, others sought to block access, attempting to ban telehealth use in abortion care or limit the use of the drugs themselves.

Augenstein believes that states will continue to change policies surrounding medication abortions via telehealth. This issue may also be further complicated by a potential nationwide ban on one of the drugs routinely used for abortions, mifepristone.

In addition, Augenstein expects to see policy focused on the extent to which telehealth can be used to meet network adequacy requirements.

Network adequacy requirements aim to ensure that health plans "maintain a network of appropriate providers that is sufficient to provide adequate access to covered services to meet the needs of the population served," according to the Centers for Medicare and Medicaid Services.

"I think we'll see more activity this year…around the intersection between telehealth and network adequacy, with some states wanting to allow for plans to use telehealth in meeting their network adequacy requirements, and other states kind of banning the practice of allowing telehealth to be used to meet network adequacy requirements," Augenstein said.

As healthcare stakeholders glean more insights into telehealth use and its impact on patient care, states have some critical decisions to make. Though there are many factors to consider, telehealth proponents are urging state governments to ensure that the benefits provided by expanded access to telehealth are not wiped out by a move back to pre-pandemic restrictions on virtual care.

"At the end of the day, healthcare and telehealth are the same," Zebley said. "They're not separate and apart. Telehealth is health. We should make sure that telehealth is not being held to, certainly not lower standards, and not to higher standards either. But instead, the same standard that in-person care is held to."