Foley & Lardner LLPThe COVID-19 pandemic has created nothing short of a seismic shift in the delivery of health care services, especially where telehealth is concerned. Following the President issuing a proclamation that the COVID-19 outbreak constitutes a national emergency, and the Secretary of Health and Human Services (HHS) determining that a public health emergency (PHE) existed nationwide, the Secretary took certain actions via the 1135 wavier process to make health care more accessible via telehealth. Additionally, Congress passed and the President signed three bills designed to increase access to and use of telehealth services. The bills also provided flexibilities for providers to complete certain administrative requirements virtually. States, via executive orders and legislative efforts, have also relaxed barriers to access of telehealth services. Advocates have held out hope that the observed changes, explored as some length below, will remain in place following the PHE. Recent legislative actions signal that the future is not all a bed of roses for telehealth.

COVID-19 spurred a multitude of changes to federal and state telehealth laws and rules. For example, expansions to telehealth coverage and reimbursement occurred at the federal level via relaxation of several Medicare limitations such as originating site restrictions during the PHE to allow the patient to receive care in his or her home. Before the PHE, telehealth requirements conditioned coverage of telehealth services upon a beneficiary being located in a qualifying rural area and being located at a qualifying “originating site.” CMS also expanded the types of health care providers that can furnish telehealth services to include all providers that are eligible to bill Medicare for their professional services, e.g., physical therapists.

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