New Bill Targets In-Person Requirement for Telemental Health Treatment

A new bill before the Senate aims to eliminate a Medicare requirement that requires beneficiaries to see a provider in person before beginning telemental health treatment.

The Telemental Health Care Access Act of 2021, introduced this week by US Senators Bill Cassidy (R-LA), Tina Smith (D-MN), John Thune (R-SD) and Ben Cardin (D-MD), addresses a provision tucked into last year’s Consolidated Appropriations Act of 2020 that has many telehealth advocates and healthcare providers up in arms. The provision requires providers to have seen their patients in person within the prior six months before the telehealth visit to qualify for Medicare coverage, and to continue in-person visits at regular intervals, the frequency of which would be determined by the Health and Human Services Department.

The bill now before the Senate would remove that provision.

“Telehealth has been essential for maintaining and expanding access to healthcare services during the COVID19 pandemic. This is especially true for those seeking mental health counseling and medical management, as we have seen spikes in anxiety, depression, substance abuse, domestic violence and suicide resulting from social isolation,” Cardin said in a joint press release. “This legislation provides additional flexibility to increase access for Medicare beneficiaries needing mental health services.”

The in-person provision, one sentence tucked into a pandemic relief bill of some 6,000 pages last year, caught many people by surprise. And they weren’t happy.

“Little legislative history is readily available that reflects Congressional lawmakers discussing the merits of Section 123’s requirement for an in-person exam,” Nate Lacktman, a partner with the Foley & Lardner law firm and chair of the firm’s Telemedicine & Digital Health Industry Team, wrote in a Feb. 15 blog. “To be fair, at 5,593 pages and $2.3 trillion, this legislation is the longest bill ever passed by Congress and one of the largest spending measures ever enacted. But the in-person exam requirement is at odds with the direction that telehealth policy has moved over the last decade. It disrupts Medicare’s historical approach, which is to defer to state laws on professional practice requirements and clinical standards of care.”

“This law may very well be the first and only instance of a federal statute expressly mandating an in-person exam as a prerequisite for Medicare coverage of a telehealth-based service,” he added.

Cardin and his colleagues say their bill corrects that issue and falls in line with the SUPPORT for Patients and Communities Act of 2018, which eliminated in-person requirements for substance abuse treatments delivered via connected health platforms.

The bill has the support of, among others, the Health Innovation Alliance and the American Telemedicine Association, which recently published a brief against in-person requirements attached to telehealth legislation.

“The ATA strongly opposes statutory in-person requirements as they create arbitrary and clinically unsupported barriers to accessing affordable, quality health care,” ATA CEO Ann Mond Johnson said in a press release issued this week. “Requirements such as these could negatively impact those in underserved communities who may not be able to have an in-person exam. We simply cannot ignore the importance of providing all Americans, regardless of whether they have an established relationship with a medical provider, the opportunity to access life-saving health care.”

"It is critical the country maintains advances telehealth has achieved in providing access to mental health services during the pandemic," HIA Executive Director Joel White said in a separate release. "It is time for Congress to follow every state in the country and eliminate unnecessary in-person visit barriers for Medicare that undermine care for seniors, and the disabled."