7 Things to Consider with New Telehealth Legislation Proposed

Organizations and experts offer insights and predictions about what lies ahead post-COVID-19.

As calls for a permanent extension of emergency telehealth waivers echo in the nation's Capitol, last week members of the House Telehealth Caucus introduced the bipartisan Protecting Access to Post-COVID-19 Telehealth Act. The legislation "seeks to expand the use of telehealth beyond the current national health crisis, including permanently eliminating obsolete geographic originating site restrictions," according to the American Telemedicine Association (ATA).

As this legislative initiative moves forward, what do health systems, hospitals, and providers need to consider? Seema Verma, administrator of the Centers for Medicare & Medicaid Services (CMS); ATA; the Healthcare Information and Management Systems Society (HIMSS); and experts at other organizations are weighing in with insights and predictions. Here's a look at the current zeitgeist:

1. Is the Proposed House Legislation Enough?

The proposed legislation addresses most priorities outlined in a June 29 letter to Congress signed by the ATA and 340 national and regional organizations last month, urging Congress to make telehealth flexibilities created during the COVID-19 pandemic permanent, according to a statement issued by the telehealth association. These priorities include:

• Removing geographic restrictions and allowing the patient’s home as an originating site
   
• Maintaining and enhancing the Department of Health and Human Services’ (HHS) authority to determine appropriate telehealth services and providers
   
• Ensuring Federally Qualified Health Centers (FQHC) and Rural Health Clinics (RHC) can continue to furnish telehealth
   
• Making HHS’ temporary waiver authority for future emergencies permanent

"This legislation is an important step towards breaking down discriminatory geographic restrictions and modernizing our healthcare delivery system," said ATA CEO Ann Mond Johnson.

2. Evaluating the Clinical Appropriateness of Telehealth

In a Health Affairs blog written by Verma and published on July 15, the CMS administrator said, "First, it is important to assess whether the mode of telehealth service delivery is clinically appropriate and safe for patients, as compared to an in-person visit." For example, before the declared public health emergency, CMS restricted telemedicine visits to patients who already had an established relationship with a practitioner. To reduce exposure risks, those limitations were then lifted to encompass new patients. "As the health care system enters a new normal," Verma writes, "it is important to consider whether allowing people with particularly acute needs to be seen by a clinician for the first time via telemedicine, instead of in-person, will result in the best possible outcomes." 

3. Will Parity Payment Continue?

During the public health emergency, Medicare has reimbursed providers the same rate for telehealth visits as it would pay for in-person visits. One question on many minds is whether this practice will continue.

In her blog post, Verma said, "Further analysis could be done to determine the level of resources involved in telehealth visits outside of a public health emergency, and to inform the extent to which payment rate adjustments might need to be made." She cited both savings and increased costs related to telehealth. "For example," Verma wrote, "supply costs that are typically needed to enable safe in-person care (e.g., patient gowns, cleaning, or disinfectants) and built into the in-person payment rate are not needed in a telehealth visit. On the other hand, there are new processes that clinicians must create for telehealth visits, with associated costs." 

The surge in telehealth activity during the pandemic should provide ample data to evaluate its effectiveness, said Tom Leary, vice president of government affairs for HIMSS, during a media briefing on July 16. Through April, Medicare beneficiaries experienced 1.7 million telehealth visits. "That's plenty enough data now for the CBO [Congressional Budget Office] to be able to really, truly understand the impact … as well as the potential cost savings or cost drivers," he said.

"Clearly, CMS is not going to want to increase their spend," said Domenic Segalla, principal, healthcare advisory services, of tax advisory company, Withum, during the same HIMSS briefing. "This is something that they're really going to dig into to see what the current rate will be going forward and the impact on both outcomes and healthcare spend," he said.

"We work a lot with large health systems, independent hospitals, and even physician groups," said Segalla. "The one thing that is clear from all of the providers and health systems is they do not believe they can go back [in time]."

4. Licensure Across State Lines

Temporary waivers have enabled Medicare providers to practice across state lines during the public health emergency, said Leary, while each state had to apply for similar exceptions for Medicaid. While there is a movement to continue these endeavors moving forward, endorsed by organizations such as the American Nursing Association and the American Medical Association, the process is complicated, said Leary. "I don't think that's as high on the priority list as some of the other waivers," he said.

Medicare will look to Congress to help them solve the issue, Leary predicted, and Medicaid will continue to work with states on individual requests.

5. The Impact of Fraud

CMS is closely examining fraud as it relates to telehealth, said Leary. " The last thing we want … is for bad actors to spoil what has been a very positive experience [with telehealth} during the pandemic," he said.

Fraudulent practices, according to Verma, might include practitioners who offer shorter telehealth visits to maximize payment, or bill more visits than are possible in a day. "It is vital that beneficiaries and taxpayer dollars are protected from unscrupulous actors," she wrote. CMS is examining data from many angles, including monitoring program integrity. "We know the path forward to expanding telehealth relies on CMS addressing the potential for fraud and abuse in telehealth, as we do with all services," she said.

6. Incentives to Invest in Telehealth Technology

Because telehealth requires an investment in technology, Bill Kinney, CPA, senior manager at Withum, who also spoke at the HIMSS press briefing, suggested that it might be necessary to create incentives to encourage technology expenditures.

"In order to incentivize this … what other parts and pieces of legislation unrelated to this could be put into place?" he asked. "Is there a way to incentivize health groups, physician groups, or anyone to invest in the technology that might be necessary?" He mentioned accelerated depreciation as one approach that would enable organizations to expense things immediately, as opposed to depreciating over a specified period of time. "There are a lot of opportunities there," he said.

Chris Cooper, managing director of the BDO Center for Healthcare Excellence and Innovation, which is part of the accounting group BDO USA, suggests that perhaps a new form of legislation could be enacted to encourage adoption of telehealth that would work similarly to the way meaningful use provided incentives for providers to adopt EMRs. During the transitional phase, incentives would be provided to close any gaps between in-person and virtual visit reimbursement.

7. Legislation to Expand Broadband Services

The pandemic has exposed inequities in access to healthcare, said Leary. "We've certainly seen anecdotal issues around minority and rural communities having less access because there isn't as much broadband exposure." As a result, he said he anticipates Congress may address this dilemma possibly by providing additional funding for broadband services in these areas.