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Executive Order expands telehealth benefits beyond COVID-19

Aug 10, 2020

Telehealth use has skyrocketed during the COVID-19 public health emergency, extending a lifeline to patients amid stay-at-home orders, and the revolution is here to stay.

The explosion of telehealth signals that healthcare may resurrect the traditional house calls that occurred decades ago with a modern twist, patients and providers will work together to determine the right balance of in-person and virtual telehealth visits.

An Executive Order issued August 3, 2020, announced a permanent expansion to telehealth services beyond the COVID-19 public health emergency, modernizing regulations and reforming payments.

Specifically, the Order calls on the Department of Health and Human Services (HHS) to:

  • Propose a Centers for Medicare & Medicaid Services (CMS) rule to extend parts of Medicare’s broader coverage of telehealth beyond the end of the current public health emergency.
  • Propose a payment model to improve rural healthcare through the Center for Medicare and Medicaid Innovation.
  • Launch a rural health action plan with a range of actions to (i) build sustainable models for rural communities; (ii) focus on preventing disease and mortality; (iii) leverage innovation and technology; and (iv) increase access to care.
  • Reach a memorandum of understanding with the Federal Communications Commission and the Department of Agriculture to promote rural access to telehealth via broadband.

“Telehealth can never fully replace in-person care, but it can complement and enhance in-person care by furnishing one more powerful clinical tool to increase access and choices for Americans,” said CMS Administrator Seema Verma. “The unprecedented expansion of telehealth during the pandemic represents a revolution in healthcare delivery, one to which the healthcare system has adapted quickly and effectively,” and “the extension of telehealth flexibilities initiated by today’s executive order inaugurates a new era of healthcare delivery.”

In an article published July 31, Verma noted that in 2018, 43 percent of health centers offered telehealth services. In 2020, more than 90 percent of health centers offered telehealth services, with about half of health center visits during the COVID-19 public health emergency occurring virtually.

Prior to the COVID-19 public health emergency, only 14,000 Medicare beneficiaries received telehealth services each week. During the public health emergency, CMS added 135 services such as emergency department visits, therapy services and initial nursing facility visits that could be paid when delivered by telehealth. As a result of these added services, by the end of April, nearly 1.7 million Medicare beneficiaries received telehealth services each week.

Consistent with the Executive Order, CMS issued a proposed Physician Fee Schedule securing some regulatory flexibilities and proposing to permanently allow some telehealth services added during the COVID-19 public health emergency. Notably, CMS is proposing a temporary extension on payment for telehealth services through the calendar year in which the COVID-19 public health emergency ends, to provide the public the opportunity to consider whether these services should be included in the permanent list of telehealth services provided.

The new telehealth order may put some providers at ease who feared that billing for telehealth services allowed under temporary orders would be considered fraud once the public health emergency ended. However, while the Order directed HHS to eliminate regulatory burdens that limit the availability of clinical professionals in rural communities, the Order did not generally expand the scope of provider types that may provide telehealth services or amend the originating and distant site requirements. Congressional action is still required to formally change which providers can use telehealth and where patients can access it.

Providers must further understand that there is a noticeable lack of uniformity of telehealth expansion at the state level. Although some states have begun exploring and approving permanent telehealth expansion within the state, the extent of state telehealth expansion and private payor reimbursement beyond the public health emergency remains to be seen. Although there are a handful of common telehealth legal provisions, the blend of these items means that multi-state analysis are needed to avoid regulatory risks.

During a briefing on August 3, 2020, President Trump stated that he would release a new healthcare plan before the end of the month. Regardless of what President Trump’s new health care plan entails, as HHS states, “it is clear that the telehealth genie is not going back into the bottle.”

Waller will continue to monitor the evolution of permanent federal and state telehealth regulations as well as the pending release of President Trump’s healthcare plan.

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