[co-authors: Michelle Fong, and Adrienne Peng]
On April 15th, the U.S. Department of Health & Human Services (HHS) announced the renewal of the Public Health Emergency (PHE).
On April 15th the Federal Communications Commission (FCC) announced the second round of the COVID-19 Telehealth funding will open April 29th.
On April 12th the FDA lifted restrictions on telehealth abortions during the PHE.
On April 12th, HHS announced the Rural Maternity and Obstetrics Management Strategies (RMOMS) program.
On April 5th, the U.S. Department of Agriculture (USDA) began accepting applications for the USDA Distance Learning & Telemedicine Grant Program (DLT).
S. 620: KEEP Telehealth Options Act of 2021
Reintroduced Mar. 9, 202
H.R. 2228: Rural Behavioral Health Access Act
Bill text not yet available at the time of publication. Introduced Mar. 26, 2021
On March 30th, the Centers for Medicare & Medicaid Services (CMS) expanded Medicare coverage for certain services delivered via telehealth.
On February 26th, HHS Office of the Inspector General (OIG) released a statement clarifying “telefraud” schemes and telehealth fraud.
On February 25th, the USDA announced it is investing $42.3 million in distance learning and telemedicine infrastructure.
On February 25th, the FCC approved the Emergency Broadband Benefit.
On January 19th, HHS' OIG released an updated list of its Active Work Plan Items.
On January 15th, the FCC announced the first round of grants for the Connected Care Pilot Program.
On January 15th, CMS released a Preliminary Medicaid & CHIP Data Snapshot.
On January 12th, HHS invested $8 million in a new Telehealth Broadband Pilot Program.
On December 29th, the Department of Labor’s Wage and Hour Division issued guidance for Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA).
On December 3rd, HHS issued an amendment to the Public Readiness and Preparedness (PREP) Act.
On December 1st, CMS finalized the Physician Fee Schedule Rule (previously proposed on August 4th) which make certain Medicare telehealth flexibilities permanent and extend others for the remainder of the year in which the public health emergency (PHE) ends.
Note: On January 19th, CMS published clarifications to its 2021 Physician fee schedule.
On November 20th, HHS published two rules that finalize reforms to the regulatory framework that governs fraud and abuse in Medicare and Medicaid programs.
In early November, CMS published a new final rule that enables health home agencies (HHAs) to use telecommunications technology or audio-only services.
On October 14, CMS expanded the list of telehealth services Medicare Fee-For-Service will pay for during the PHE.
On October 14, CMS released a Preliminary Medicaid and CHIP Data Snapshot to provide information on telehealth utilization during the PHE.
On August 4th, CMS released a proposed Physician Fee Schedule Rule which would make certain Medicare telehealth flexibilities permanent and extend others for the remainder of the year in which the public health emergency (PHE) ends.
On May 1, CMS released a second IFR with comment period (IFC), “Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program,” outlining further flexibilities in Medicare, Medicaid, and health insurance markets as a result of COVID-19.
For a summary of the second IFR, please see the May 5 Manatt Insights summary.
On April 17, CMS released Frequently Asked Questions (FAQs) on Medicare Fee-for-Service Billing and highlighted several changes to RHC and FQHC requirements and payments.
New Payment for Telehealth Services (real-time, audio visual):
Expansion of Virtual Communication Services (telephone, online patient communication):
For more information on Expanded Telehealth Reimbursement for FQHCs and RHCs, see our June 9 Manatt newsletter.
On April 2, CMS issued an informational bulletin regarding Medicaid coverage of telehealth services to treat substance use disorders (SUDs)—one of many guidance documents required by the October 2018-enacted Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act.
This guidance provides states options for federal reimbursement for “services and treatment for SUD under Medicaid delivered via telehealth, including assessment, medication-assisted treatment, counseling, medication management, and medication adherence with prescribed medication regimes.”
For a summary of this bulletin, please see the April 6 Manatt Insights summary.
On March 30, CMS released an interim final rule (IFR) outlining new flexibilities to preexisting Medicare and Medicaid payment policies in the midst of the COVID-19 public health emergency (also, PHE).
These provisions include adding over 80 additional eligible telehealth services, giving providers flexibility in waiving copays, expanding the list of eligible types of providers who can deliver telehealth services, introducing new coverage for remote patient monitoring services, reducing frequency limitations on telehealth utilization, and allowing telephonic and secure messaging services to be delivered to both new and established patients. The provisions listed in this rule are effective March 31, with applicability beginning on March 1.
For more information on the IFR, see our April 9 Manatt newsletter.
On March 18, the HHS and the Office for Civil Rights (OCR) issued a public notice stating that OCR will not impose penalties for noncompliance with regulatory requirements under the HIPAA rules “against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”
This will allow providers to communicate with patients through telehealth services and remote communications technologies during the COVID-19 national emergency. Providers may use any non-public-facing remote communication product that is available to communicate to patients; these applications can include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype.
For more information on our HIPAA summary, see our April 23 Manatt newsletter.
On March 10, CMS introduced significant new flexibilities for Medicare Advantage (MA) and Part D plans to waive cost-sharing for testing and treatment of COVID-19, including emergency room and telehealth visits during the crisis.
MA plans are required to:
For more information on Medicare changes, see our March 17 Manatt newsletter.
In March 2021, MedPAC issued a report entitled “Medicare Payment Policy.”
The report included a chapter that proposes how Medicare may cover telehealth services for a limited duration of time after the end of the COVID-19 PHE; the commission noted that more time and data are needed prior to recommending permanent coverage and reimbursement changes. Specifically, MedPAC proposes temporarily continuing the following flexibilities for a limited duration of time after the end of the PHE:
After the PHE ends, MedPAC proposes: 1) returning to the fee schedule’s facility rate for telehealth services and collecting data on the cost to deliver telehealth services; and, 2) reintroducing cost sharing for telehealth services. In addition, MedPAC suggests implementing the following safeguards to prevent unnecessary spending and fraud:
Notably, the path forward proposed by MedPAC in this report does not ensure long-term permanent coverage for telehealth for all Medicare members regardless of where they are located (e.g., patients in non-rural areas, patients located in their home), or for telehealth services delivered via audio-only modalities.
On March 5th, the House Energy & Commerce Health Subcommittee held a hearing, The Future of Telehealth: How COVID-19 is Changing the Delivery of Virtual Care to discuss the future of telehealth in Medicare.
On January 14th, MedPAC hosted a meeting to discuss whether and how to permanently expand telehealth in fee-for-service Medicare.
The Commissioners largely supported the policy options outlined by MedPAC staff to maintain on a permanent basis some of the temporary policy changes made during the PHE. Several commissioners noted that given the pace of change with respect to telehealth adoption during the COVID-19 pandemic and the lack of concrete evidence to support permanent expansion of certain policies, they would be more comfortable supporting expansion on a more time-limited basis (e.g. 1-2 years) than permanently. In addition, the Commissioners identified several areas that will require continued discussion in order to balance access, cost and quality imperatives.
The policy options will be incorporated into MedPAC’s upcoming report to Congress expected in March 2021.
For more information regarding the MedPAC meeting, please see our Manatt Insights Newsletter.
On November 9, MedPac issued a report on the expansion of telehealth in Medicare.
The presentation highlights permanent (post-PHE) policy options that CMS may consider when expanding Medicare telehealth coverage.
For more information, please see our Manatt Newsletter.
S. 150: Ensuring Parity in MA for Audio-Only Telehealth Act of 2021
Reintroduced Feb. 2, 2021
S. 368: Telehealth Modernization Act
Reintroduced Feb. 23, 2021
Introduced March 10, 2021 Bill text not yet available at the time of publication.
S. 155: Equal Access to Care Act
S. 2741: Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2019
S. 4103: Telehealth Response for E-prescribing Addiction Therapy Services (TREATS) Act
H.R. 318: Safe Testing at Residence Telehealth Act of 2021
Reintroduced Jan. 13, 2021
H.R. 341: Ensuring Telehealth Expansion Act of 2021
Reintroduced Jan. 15, 2021
H.R. 366: Protecting Access to Post-COVID-19 Telehealth Act of 2021
Reintroduced Jan. 19, 2021
H.R. 596: The Advancing Connectivity During the Coronavirus to Ensure Support for Seniors (ACCESS) Act
Reintroduced Jan. 28, 2021
H.R. 708: Temporary Reciprocity to Ensure Access to Treatment Act (TREAT)
H.R. 726: COVID–19 Testing, Reaching, And Contacting Everyone (TRACE) Act
H.R. 937: Tech To Save Moms Act
H.R. 1406: COVID-19 Emergency Telehealth Impact Reporting Act
Reintroduced Feb. 26, 2021
H.R. 1397: Telehealth Improvement for Kids’ Essential Services (TIKES) Act Reintroduced Feb. 26, 2021
H.R. 2166: Ensuring Parity in MA and PACE for Audio-Only Telehealth Act
Bill text not yet available at the time of publication. Introduced Mar. 23, 2021
H.R. 2168: Expanded Telehealth Access Act
H.R. 6074: Coronavirus Preparedness and Response Supplemental Appropriations Act
H.R. 748: Coronavirus Aid, Relief, and Economic Security (CARES) Act
For more information on the CARES Act, see our March 27 Manatt newsletter.
H.R. 133: Consolidated Appropriations Act, 2021
For more information on the Consolidated Appropriations Act, see our December 23 Manatt newsletter.
H.R. 1319: American Rescue Plan Act of 2021
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.