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Could telehealth expansion have bipartisan support?

Jul 15, 2020

The use of telehealth skyrocketed during the COVID-19 public health emergency, as many regulatory barriers restricting its use were temporarily removed at the federal and state level and by private payors. Providers and patients adapted to the changes and are now relying on these flexibilities to deliver and receive high quality virtual care. This rapid expansion of the use of telehealth has ignited the need for permanent telehealth reform. Without permanent reform, the various government waivers are set to expire when the COVID-19 public health emergency ends. Absent statutory and regulatory changes, providers and patients will lose access to many of these services entirely or they will be significantly restricted. Some states have begun exploring and approving permanent telehealth expansion within the state, but an act of Congress is required for telehealth expansion of Medicare, Medicaid and CHIP across state lines.

Recently, 340 organizations, healthcare providers and connected health advocates signed a letter urging Congress to permanently reform telehealth. The letter focuses on:

  • removing telehealth restrictions regarding the location of a patient;
  • providing the U.S. Department of Health and Human Services (HHS) with flexibility to expand the list of eligible telehealth practitioners;
  • ensuring that federally qualified health centers (FQHCs) and rural health clinics (RHCs) can furnish telehealth services beyond the COVID-19 public health emergency; and
  • making permanent the temporary waiver authority of HHS during emergencies, which would allow it to act swiftly in any future pandemic.

The letter notes, among other things, that “taken as a whole, these policy changes have allowed 46% of Americans to replace a cancelled healthcare visit with a telehealth service during the COVID-19 public health emergency.”

In what appears to be a response to this letter, on July 2, 2020, Congress sent a letter to HHS and CMS officials requesting:

  • a written plan and timeline for making permanent the administrative changes to Medicare, Medicaid and CHIP rules governing the provision of telehealth under Section 1135 Waivers;
  • a timeline for if and when enforcement discretion by HHS Office for Civil Rights (OCR) for non-compliance with the Health Insurance Portability and Accountability Act (HIPAA) will end;
  • clarification on whether existing in-office Medicare reimbursement parity to telehealth services provided by FQHCs and RHCs for the duration of the pandemic would be extended;
  • guidance for private health plans to provide advance notice to their enrollees on future changes to coverage of telehealth services; and
  • more details on the extension of telehealth beyond the COVID-19 public health emergency, including a list of which telehealth changes require Congressional action.

As of this writing, HHS and CMS have yet to respond, but Waller will continue to monitor this issue.

In the current political landscape, bipartisan support of healthcare reform may appear to be a tall order. Healthcare has been an especially controversial topic as the Affordable Care Act has been entangled in a legislative tug-of-war and there have been intraparty disagreements over healthcare reform. Telehealth, however, may be one of the few areas of healthcare reform that will draw bipartisan support. The letter sent to HHS and CMS was signed by 35 senators across party lines. As with many things related to COVID-19, the ultimate trajectory of these issues is unclear, but we can say with certainty that some forms of change are certain to occur. One such change may have already arrived in the form of a proposed rule issued by CMS that would allow home health agencies to continue the use of telehealth for home health visits beyond the COVID-19 pandemic. More information is available here.

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