As the COVID-19 pandemic continues across the United States, states, payers, and providers are looking for ways to expand access to telehealth services. Telehealth is an essential tool in ensuring patients are able to access the healthcare services they need in as safe a manner as possible. In order to provide our clients with quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a federal and comprehensive 50-state tracker for policy, regulatory and legal changes related to telehealth during the COVID-19 pandemic. Below is the executive summary, which outlines federal developments from the past two weeks, new state-level developments, and older federal developments. The full tracker with details for each state is available through Manatt on Health, Manatt Health’s premium subscription service. For more information, contact Jared Augenstein at jaugenstein@manatt.com.
New Federal Developments
New State-Level Developments
Note: As indicated in the table below, several states have recently taken action to update, continue, or renew their state of emergencies for COVID-19 in response to the rise of new cases linked with the Omicron variant. These updates are highlighted below because in many states, temporary telehealth flexibilities are tied to the status of state of emergency declarations.
Payment Parity Permanent State Laws and Statutes
Payment Parity requires that health care providers are reimbursed the same amount for telehealth visits as in-person visits. During the COVID-19 pandemic, many states implemented temporary payment parity through the end of the public health emergency. Now, many states are implementing payment parity on a permanent basis. As portrayed in Figure 1, as of August 2022, 21 states have implemented policies requiring payment parity, 5 states have payment parity in place with caveats, and 24 states have no payment parity.
Figure 1. Map of States With Laws Requiring Insurers to Implement Payment Parity (as of August 2022)
Federal Developments More than Two Weeks Old
Executive Branch Activity
Legislative Activity
Relevant Telehealth Data and Reports
In June 2022, FAIR published an article titled “In March 2022, Telehealth Utilization Fell Nationally for Second Straight Month”. Telehealth utilization, as measured by telehealth’s share of all medical claim lines, fell nationally for the second straight month, according to FAIR Health’s Monthly Telehealth Regional Tracker. Researchers suggest the decline in telehealth use was due to an ongoing reduction in the severity and prominence of COVID-19, encouraging more patients to attend in-person visits. The article also states that despite the decline in overall telehealth usage, mental health conditions remain at the top of the list of telehealth diagnoses.
In May 2022, The National Committee for Quality Assurance (NCQA) released a report titled “The Future of Telehealth Roundtable,” which highlights strategies that could help close care gaps as telehealth usage continues to grow. In October 2021, NCQA hosted a roundtable discussion to facilitate dialogue on the future of telehealth delivery in a post-pandemic world; the three following strategies were identified to promote equitable access in telehealth delivery:
- Creating telehealth services that cater to personal patient preferences and needs, as some individuals may face struggles due to their primary language and socioeconomic status
- Addressing regulatory barriers to access and changing regulations to allow expanded provider eligibility for licensure
- Leveraging Telehealth and Digital Technologies to Promote Equitable Care Delivery
The report suggests that as telehealth becomes the new “normal”, it is important to prevent inequitable gaps in telehealth delivery.
In May 2022, JAMA Pediatrics published a research letter titled, “Association of Race and Socioeconomic Disadvantage With Missed Telemedicine Visits for Pediatric Patients During the COVID-19 Pandemic.” The letter highlights how pediatric patients are more likely to miss telehealth visits if they are low-income. Specifically, a higher probability of economic disadvantage was associated with a greater likelihood of missing a telehealth visit as compared to an in-person visit across racial groups. Additionally, telehealth visits were associated with lower no-show rates for future clinical appointments, but only for those with lower economic disadvantage.
In May 2022, Health Affairs published a study titled, “Medicare Beneficiaries In Disadvantaged Neighborhoods Increased Telemedicine Use During The COVID-19 Pandemic.” The study found that Medicare beneficiaries living in disadvantaged areas had the greatest odds of expanded telehealth utilization as a result of emergency federal telemedicine coverage expansions during the COVID-19 pandemic. However, odds of increased telehealth access dropped as age increased.
In May 2022, Harvard Business Review released an article titled “The Telehealth Era Is Just Beginning,” which explored the current landscape and evidence around telehealth, and discussed future trends in telehealth utilization and policy coming out of the COVID-19 pandemic. Using internal data from Kaiser Permanente and Intermountain Healthcare, combined with National Committee for Quality Assurance outcomes data and health plan member satisfaction surveys, the authors outline five opportunities that broader telehealth utilization could provide:
- A reduction in expensive, unnecessary ER visits
- An improvement in timeliness and efficiency of specialty care
- Access to the best doctors
- A reversal of America’s chronic-disease crisis
- Mitigation of health care disparities
The report also suggested that further integration among care team members and adoption of capitated payment models may expedite the implementation of telehealth.
RAND Corporation released a report titled “Experiences of Health Centers in Implementing Telehealth Visits for Underserved Patients During the COVID-19 Pandemic”, which evaluated the progress of FQHCs that participated in the Connected Care Acceleration (CCA) initiative by investigating changes in telehealth utilization and health center staff experiences with implementation. The study found that although overall visit volumes remained about the same from the pre-pandemic to the pandemic study periods, the share of audio-only and video visits dramatically increased during the pandemic, and audio-only visits were the leading modality for primary and behavioral health. The study recommends continued study of telehealth trends, particularly regarding equitable access to telehealth.
In March 2022, the American Medical Association released their 2021 Telehealth Survey Report, which aimed to gather insights on the experiences of current and expected future use to inform ongoing telehealth research and advocacy, resource development, and continued support for physicians, practices, and health systems. Data was collected from individuals, state and specialty medical organizations, and members of the American Medical Association Telehealth Immersion Program. The survey indicated that 85% of physicians currently use telehealth, and over 80% of patients said that they receive better access to care since using telehealth. In addition, 54.2% of respondents indicated that telehealth has improved the satisfaction of their work, and 44% said that telehealth has lowered costs.
In March 2022, GAO published a report titled “CMS Should Assess Effect of Increased Telehealth Use on Beneficiaries’ Quality of Care”, which examined the use of telehealth among Medicaid beneficiaries before and during the COVID-19 pandemic across six select states: Arizona, California, Maine, Mississippi, Missouri, Tennessee. The report also explored the states’ experiences with telehealth during the pandemic, future plans for post-PHE telehealth coverage, and CMS’ oversight of quality of care for services delivered via telehealth. GAO found that five of the selected states delivered 32.5 million services via telehealth to approximately 4.9 million beneficiaries between March 2020 and February 2021, up from 2.1 million services delivered to about 455,000 beneficiaries during the same time period in the previous year. Notably, the report highlighted the need for improved data collection and analysis related to the quality of care delivered via telehealth. Based on the results of the study, GAO issued two recommendations to CMS: (1) collect and analyze information about the effect delivering services via telehealth has on the quality of care Medicaid beneficiaries receive, and (2) determine any next steps based on the results of the analysis.
In March 2022, the HHS-OIG released a data brief titled “Telehealth Was Critical for Providing Services to Medicare Beneficiaries During the First Year of the COVID-19 Pandemic,” which examined trends in telehealth utilization among Medicare fee-for-service and Medicare Advantage beneficiaries from March 2020 to February 2021. The data brief indicated that more than 40% of Medicare beneficiaries utilized telehealth during the first year of the pandemic, with use remaining high through early 2021. Beneficiaries used 88 times more telehealth services during the first year of the pandemic as compared to the prior year.
In March 2022, the American Medical Association (AMA) released a physician survey examining experiences with and perceptions of telehealth. Of the 2,232 provider respondents, nearly 85% indicated they currently use telehealth to deliver care to patients, while 70% indicated they plan to continue offering telehealth services. Moreover, 60% of providers surveyed felt telehealth enabled them to provide high quality care, while 80% of respondents indicated patients received better access to care since using telehealth.
In February 2022, the American Medical Association (AMA), in collaboration with Manatt Health, published a report titled “Accelerating and Enhancing Behavioral Health Integration Through Digitally Enabled Care,” which used findings from a diverse working group to highlight solutions that industry stakeholders can apply to address gaps hindering the equitable and sustainable adoption of digitally-enabled behavioral health integration (BHI). Solutions included: increasing BHI training for primary care and behavioral health providers through the incorporation of digitally enabled BHI into standard curricula, encouraging the incorporation of telehealth into BHI by implementing payment parity for behavioral health services delivered via video or audio-only modalities, and passing legislation to remove originating site and geographic restrictions for all telehealth services in Medicare that limit access to care.
In February 2022, Doximity, a provider networking and digital health service, published the second edition of its “State of Telemedicine Report,” which highlighted findings in patient and provider perceptions of telehealth based on surveys conducted between January 2020 and June 2021. Patients overall showed growing trust in telehealth as a mechanism for high-quality care, with 55% reporting that they felt telemedicine provided equal or greater quality of care than in-person visits in 2021, compared to 40% in 2020. In addition, approximately two thirds of physicians indicated that using telemedicine allowed them to build or preserve trust with their patients.
In February 2022, The U.S. Government Accountability Office (GAO) released a report titled, “Defense Health Care: DOD Expanded Telehealth for Mental Health Care during the COVID-19 Pandemic,” which focused on telehealth use in the military. Among active duty servicemembers, pre-pandemic telehealth visits made up 15% of mental health care visits, compared to 33% in April 2021. Department of Defense (DOD) officials highlighted the value of telehealth and its ability to improve access and continuity of care. In addition, officials suggested that telehealth may reduce the stigma of seeking mental health treatment by allowing servicemembers to receive care more privately without the risk of being seen in military treatment facilities.
In February 2022, the HHS Office of the Assistant Secretary for Planning and Evaluation released an issue brief titled “National Survey Trends in Telehealth Use in 2021: Disparities in Utilization and Audio vs. Video Services,” which compared differences in telehealth access for audio-only and video visits between April and October 2021. While overall telehealth utilization was similar across demographic groups, except among the uninsured, there were significant differences in video telehealth use. Rates of video telehealth use were lowest among Latino, Asian and Black individuals, those without a high school degree and adults ages 65 and older.
In October 2021, the HHS-OIG released a data snapshot report titled “Most Medicare beneficiaries received telehealth services only from providers with whom they had an established relationship,” which evaluated the relationship between providers and Medicare patients utilizing telehealth between March and December 2020. Notably, the data snapshot found that 84% of Medicare beneficiaries received telehealth services only from providers with whom they had an established relationship.
In October 2021, JAMA published an study titled “Changes in Virtual and In-Person Health Care Utilization in a Large Health System During the COVID-19 Pandemic,” which sought to assess the association between the growth of virtual care and health care utilization in an integrated delivery network. The study found that while COVID-19 caused in-person visits to decline and virtual services to increase, there was no significant change in the overall volume of healthcare utilization, suggesting that virtual care was substitutive, rather than additive in the ambulatory care setting.
In September 2021, the HHS-OIG released two telehealth reports “States Reported Multiple Challenges With Using Telehealth To Provide Behavioral Health Services to Medicaid Enrollees” and “Opportunities Exist To Strengthen Evaluation and Oversight of Telehealth for Behavioral Health in Medicaid” based on surveys conducted in early 2020. The surveys focused around telemental health delivery though managed care organizations.
In July 2021, AAMC in in partnership with Manatt Health published “Sustaining Telehealth Success: Integration Imperatives and Best Practices for Advancing Telehealth in Academic Health Systems”, conducting extensive interviews with many leading telehealth AMCs across the country (Ochsner, VA, Kaiser, MUSC, UMMC, Intermountain, Jefferson, etc.) and synthesizing best practices through this report.
In July 2021, The National Association of Community Health Centers (NACHC) published “Telehealth During COVID-19 Ensured Patients Were Not Left Behind,” which explores how health centers have utilized telehealth and the implications for health center patients should the PHE flexibilities not be extended.
In June 2021, the Lucile Packard foundation published “COVID-19 Policy Flexibilities Affecting
Children and Youth with Special Health Care Needs” to identify key flexibilities enacted during the PHE related to children and youth with special health care needs (CYSHCN) and summarize stakeholders’ perspectives about the impact of policy flexibilities on CYSHCN and their families and providers.
In June 2021, the Commonwealth Fund published “States’ Actions to Expand Telemedicine Access During COVID-19 and Future Policy Considerations,” which examined state actions to expand individual and group health insurance coverage of telemedicine between March 2020 and March 2021 in order to better understand the changing regulatory approach to telemedicine in response to COVID-19.. Notably, the report found that twenty-two states “changed laws or policies during the pandemic to require more robust insurance coverage of telemedicine.” Three policy flexibilities that states focused on included: requiring coverage of audio-only services; requiring payment parity between in-person and telemedicine services; and, waiving cost sharing for telemedicine or requiring cost sharing equal to in-person care.
In June 2021, the Substance Abuse and Mental Health and Services Administration (SAMHSA) released “Telehealth for the Treatment of Serious Mental Illness and Substance Use Disorders,” a guide supporting the implementation of telehealth across diverse mental health and substance use disorder treatment settings. The guide examines the current telehealth landscape and includes guidance and resources for evaluating and implementing best practices that will continue to assist treatment providers and organizations seeking to increase access to mental health services via telehealth.
In May 2021, the National Academy for State Health Policy (NASHP) released “States Expand Medicaid Reimbursement of School-Based Telehealth Services” exploring how states are increasing Medicaid coverage of school-based telehealth services during COVID-19, determining which services can effectively be delivered through telehealth, and supporting equitable access to telehealth services for students.
In May 2021, the Kaiser Family Foundation published “Medicare and Telehealth: Coverage and Use During the COVID-19 Pandemic and Options for the Future” analyzing Medicare beneficiaries’ utilization of telehealth using CMS survey data between summer and fall of 2020.
In May 2021, the American Medical Association in partnership with Manatt Health published “Return on Health: Moving Beyond Dollars and Cents in Realizing the Value of Virtual Care” to articulate the value of digitally enabled care that accounts for ways in which a wide range of virtual care programs can increase the overall health and generate positive impact for patients, clinicians, payors and society.
In March 2021, the Journal of the American Medical Association (JAMA) published “In-Person and Telehealth Ambulatory Contacts and Costs in a Large US Insured Cohort Before and During the COVID-19 Pandemic,” highlighting existing disparities related to the digital divide.
FAIR Health publishes a Monthly Telehealth Regional Tracker to track how telehealth is evolving comparing telehealth: volume of claim lines, urban versus rural usage, the top five procedure codes, and the top five diagnoses.
In February 2021, the Commonwealth Fund published “The Impact of COVID-19 on Outpatient Visits in 2020: Visits Remained Stable, Despite a Late Surge in Cases” tracking trends in outpatient visit volume through the end of 2020 hoping to track what the clinical impacts of the pandemic are and how accessible has outpatient care been, if there are new policies encouraging greater use of telemedicine, and what has been the financial impact of the pandemic on health care providers.
In February 2021, the California Health Care Foundation in partnership with Manatt Health published “Technology Innovation in Medicaid:What to Expect in the Next Decade,” a survey of 200 health care thought leaders in order to learn where health technology in the safety net is expected to go over the next decade.
In February 2021, Health Affairs published “Variation In Telemedicine Use And Outpatient Care During The COVID-19 Pandemic In The United States”, which examined outpatient and telemedicine visits across different patient demographics, specialties, and conditions between January and June 2020. The study found that 30.1% of all visits were provided via telemedicine, and usage was lower in areas with higher rates of poverty.
On December 29, JAMA published an article evaluating whether inequities are present in telemedicine use during the COVID-19 pandemic. The study found that older patients, Asian patients, and non–English-speaking patients had lower rates of telemedicine use, and older patients, female patients, Black, Latinx, and poorer patients had less video use. The authors conclude that there are inequities that exist and the system must be intentionally designed to mitigate inequity.