Potential Congressional Action on Telehealth

Brownstein Hyatt Farber Schreck

Last year as the COVID-19 pandemic forced many providers to close their doors for in-person care, the Centers for Medicare and Medicaid Services (CMS) and Congress acted quickly to provide waivers, administrative relief, and reimbursement for telehealth services so patients could receive care safely at home.

Many of these flexibilities are tied to the public health emergency (PHE) declaration that the Department of Health and Human Services (HHS) has the authority to declare and extend under Section 319 of the Public Health Service Act. The PHE was most recently extended by HHS Secretary Xavier Becerra for another 90 days on April 21. It is anticipated that HHS will keep the PHE in place for at least the remainder of 2021, and possibly longer, though permanent telehealth policy changes will need to come from Congress. Congress typically works better under deadlines, so the end of the PHE will be an action-forcing event that will push congressional leaders to act on telehealth expansion.

Advocates for telehealth argue that telehealth increases access to care in rural areas, areas that have provider shortages, and for individuals who might have other barriers to receiving in-person care.

Historical opposition to telehealth expansion has mainly been around the high price tag; the Congressional Budget Office (CBO) has traditionally assumed that if telehealth is more widely available, the surge of demand and utilization will greatly increase the financial obligations for payors. Another concern has been around the potential for fraud and abuse. For example, a recent HHS Office of Inspector General (OIG) report found that there was approximately $4.5 billion in telehealth-related fraud losses last year.

Despite these concerns, there remains a significant likelihood that Congress will act on making some of the PHE-related telehealth flexibilities permanent—especially given that it is popular with both patients and providers.

Congressional Landscape

To date in the 117th Congress, there have been at least 25 bills introduced on telehealth expansion. While some proposals stem from long-standing policy proposals from previous years, others build off the foundation of the PHE waivers and CARES Act policies and aim to make them permanent. Some of the most popular bills include:

  • Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2021 (S. 1512/H.R. 2903) – Introduced last week by Sens. Schatz (D-HI), Wicker (R-MS), Cardin (D-MD), Thune (R-SD), Warner (D-VA) and Hyde-Smith (R-MS), and Reps. Thompson (D-CA), Welch (D-VT), Schweikert (R-AZ), Johnson (R-OH) and Matsui (D-CA). The CONNECT for Health Act would permanently remove the geographic restrictions under Sec. 1834(m) of the Social Security Act that restrict telehealth services to specific rural areas and certain locations such as physicians’ offices and hospitals. Section 3703 of the CARES Act gave the HHS secretary the authority to waive the geographic and originating site requirements, as well as other requirements from Sec. 1834(m) during the PHE. The bill would also allow Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to permanently offer telehealth services as distant site providers. It would also require a study on telehealth utilization during the COVID-19 pandemic and require a study by the Center for Medicare and Medicaid Innovation (CMMI) to look at the impact of telehealth waivers on CMMI models.
  • Telehealth Modernization Act (S. 368/H.R. 1332) – Introduced by Sens. Scott (R-SC), Schatz (D-HI), and Shaheen (D-NH), and Reps. Carter (R-GA), Blunt Rochester (D-DE), Griffith (R-VA), Van Drew (R-NJ), Morelle (D-NY), Kilmer (D-WA), Pence (R-IN) and Panetta (D-CA). The Telehealth Modernization Act would permanently remove the 1834(m) geographic and originating site restrictions for Medicare patients. The bill would allow FQHCs and RHCs to permanently offer telehealth services as distant site providers. It would also give HHS the ability to expand the types of health care practitioners eligible to furnish telehealth services.
  • Protecting Access to Post-COVID Telehealth Act of 2021 (H.R. 366) – Introduced in the House by Reps. Thompson (D-CA), Welch (D-VT), Schweikert (R-AZ), Johnson (R-OH) and Matsui (D-CA). The Protecting Access to Post-COVID Telehealth Act of 2021 would remove the 1834(m) geographic and originating site restrictions for Medicare patients. It would authorize CMS to continue reimbursement for telehealth for 90 days beyond the end of the PHE. The legislation would require a study on telehealth utilization during COVID-19, and make permanent HHS’s disaster waiver authority, enabling telehealth expansion in Medicare during all future emergencies and disasters.
  • Knowing the Efficiency and Efficacy of Permanent (KEEP) Telehealth Options Act (S. 620/H.R. 1677) – Introduced in the Senate by Sens. Fischer (R-NE) and Rosen (D-NV) and the House by Reps. Balderson (R-OH) and Axne (D-IA), the KEEP Telehealth Options Act would require the HHS secretary to study and produce a public report on the actions taken to expand access to telehealth services during the COVID-19 pandemic. Additionally, the legislation would require a report to Congress on the efficiencies, management, successes and failures of the expansion of telehealth services during this PHE. These studies could then be used by Congress to support and inform the future of telehealth.
  • Temporary Reciprocity to Ensure Access to Treatment (TREAT) Act (S. 168/H.R. 708) Introduced by Sen. Murphy (D-CT) and Rep. Latta (R-OH), the TREAT Act aims to allow providers to bypass state and federal licensing requirements during the COVID-19 PHE and improve access to care for consumers. Specifically, it would: enable providers licensed in good standing to treat patients in any state during the PHE without jeopardizing the state licensure or facing penalties; require providers to obtain oral or written acknowledgment of services; require them to notify a state or local licensing board within 30 days of first practicing in another state; prevent them from offering any service that is otherwise prohibited by a state where a patient is located and require adherence to specified prescribing requirements of the state; allow states to pursue investigations and disciplinary actions, including the ability to exclude a clinician from practicing in the state under this bill; not pertain to providers licensed under a compact agreement or licensed in the state where the patient resides; and remain in effect through the PHE, followed by a 180-day phase-out period. Additionally, the TREAT Act would grant HHS authority to unilaterally create similar temporary licensure regulations in the event of future emergencies.

Congressional Hearings

As Congress considers a number of possible legislative approaches, the committees of jurisdiction have held hearings to examine how telehealth expansion has worked during COVID-19. During a hearing before the House Energy and Commerce Health Subcommittee on March 2, members of Congress generally agreed that expanded access to telehealth services was a positive change, but acknowledged that such largescale changes required careful consideration given policy and fiscal implications.

Members identified interstate licensure as a major barrier to broader adoption of telehealth services and agreed reforms are needed so that clinicians can practice telehealth across state lines, though some witnesses cautioned the committee against congressional action to create a nationwide licensure standard. Some witnesses argued that a physician should be licensed in the state where the physician sits rather than where the patient sits as there is no interstate policing authority.

Committee members also expressed concern about barriers that exist for underserved populations to access telehealth services, especially unreliable broadband. Rep. Doris Matsui (D-CA) acknowledged that although telehealth resources often expand access to health care for underserved communities, if access to broadband remains limited in inner cities, the most vulnerable will remain underserved. Rep. Morgan Griffith (R-VA) concurred, noting that many of his rural constituents lacked access to broadband internet. Similarly, Reps. Matsui and Griffith raised concerns about the rolling back of programs that would support audio-only telehealth, because in many communities the bandwidth for audio-video communications does not exist. The witnesses all concurred that access to broadband is a major obstacle to fuller adoption of telehealth.

Full Committee Ranking Member McMorris Rodgers (R-WA) focused her time on how telehealth can address behavioral and mental health challenges in children and adolescents. Dr. Ateez Mehrotra of Harvard Medical School said an application of telemedicine has great potential in this area, and noted that outcomes are the same, and sometimes better for telehealth. Later in the hearing, witnesses both noted that pre-pandemic data indicated a rise in mental health-related telehealth visits, and that they expect the trend to continue as access expands.

A number of members also expressed concern about the potential for fraud, waste and abuse in the system, particularly among elderly patients more vulnerable to health care fraud. Some witnesses claimed that increasing the use of telehealth would not increase the level of health care fraud, and that the existing data show no more overutilization in telehealth than takes place under normal circumstances. However, there was a general consensus that more data are needed to determine whether telehealth lent itself to cost-effectiveness or overutilization.

On April 28, the House Ways and Means Subcommittee on Health held a hearing to explore how to expand telehealth services in the U.S. Like the prior hearing, discussion mainly revolved around the themes of access to broadband and program integrity. Chair Lloyd Doggett (D-TX) warned of a two-tiered telehealth system, with those in rural areas not having the same access as others. Other members of the committee noted that the digital divide also impacts minority communities due to language barriers and systemic inequities. The witnesses emphasized the importance of having bicultural and bilingual health care providers trained on issues that have a disparate impact on certain races and genders. They stressed the need to expand broadband access to all hard-to-reach and underserved communities. Ranking Member Devin Nunes (R-CA) acknowledged the great benefits of telehealth, but cautioned that the system could be susceptible to fraud and abuse. Some witnesses argued that telehealth is increasingly adopted because it saves money, and noted the importance of understanding the impact of telemedicine on total utilization since usage rates during the pandemic may have skewed the data. Further, the witnesses contended that telehealth should not be separate from traditional health care opportunities but a complement to it, since it may be preferable for some services, such as for mental health concerns, but not others.

Conclusion

While there is bipartisan agreement that telehealth benefits should extend beyond the PHE, there are still a number of policy issues to resolve, including state licensure, reimbursement levels for telehealth services versus in-person visits, and concerns about how to limit possible fraud. Further, lawmakers will need to figure out how to pay for extending these benefits for recipients of federal health programs. House and Senate committees will continue to examine these policy issues, knowing that unless Congress acts, many telehealth benefits will disappear at the end of the PHE.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brownstein Hyatt Farber Schreck | Attorney Advertising

Written by:

Brownstein Hyatt Farber Schreck
Contact
more
less

Brownstein Hyatt Farber Schreck on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.