What 2022 Could Have in Store for Laws Governing Telehealth

January 17, 2022 - Though telehealth usage has both dipped and grown at various points over the last year, it is expected to remain a key part of care delivery well beyond the COVID-19 pandemic. But its future depends on several factors, not least of which is the regulatory landscape.

During the COVID-19 pandemic, restrictions around telehealth use loosened as in-person care was stymied. Regulatory flexibilities were enacted at the state and national levels, including the Centers for Medicare & Medicaid Services allowing telephone-based check-ins and enabling providers to conduct telehealth visits across state borders.

But now, the question arises: how do lawmakers plan to support telehealth as the pandemic evolves, and eventually, ends?

Key pieces of legislation moving through Congress

By and large, policymakers have embraced telehealth, and there are several bills that were introduced in Congress last year that extend support to telehealth access and further expansion.

One of the broadest pieces of legislation is the Cures 2.0 bill, the finalized version of which was introduced in the House of Representatives last November. The bill mostly focuses on policies to expedite the delivery of treatments and innovations to patients across the country, including telehealth. It details policies that should be implemented by CMS to extend telehealth access and coverage to Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) beneficiaries.

Another is the Connect for Health Act, which would allow telestroke evaluation and management sites, Native American health service facilities, and dialysis facilities to serve as originating sites for telehealth visits. The act would also include telehealth and remote patient monitoring as basic benefits in Medicare Advantage plans.

"It's a very popular piece of legislation, and I think that's very much focused in particular on removing the barriers to Medicare telehealth coverage and just general medical practice," said Jake Harper, associate with Morgan Lewis and co-chair of the law firm's digital health steering committee, in a phone interview.

The act has 120 or 130 co-sponsors in the House, while the Senate version has over 50, Harper added.

More recently, members of the House Ways and Means Health Subcommittee introduced the Telehealth Extension Act, which aims to lift geographic and site restrictions to allow Medicare beneficiaries to access telehealth no matter where they live. Additionally, it would extend select COVID-19 emergency telehealth waivers for two years. Congresswoman Elise Stefanik (R-NY) recently became a co-sponsor of this bill.

Further, four U.S. senators introduced the Expanded Telehealth Access Act in early November 2021, which has similar goals to the extension act, seeking to make permanent CMS policies that temporarily expanded Medicare coverage and reimbursement for certain telehealth services.

And then there is the Telemental Health Care Access Act, introduced in the Senate last June.

This piece of legislation is a response to the Consolidated Appropriations Act of 2021, which allowed telemental healthcare to be covered under Medicare, but with certain restrictions. For example, the appropriations act requires a patient be seen in person before they are allowed to receive mental healthcare through telemedicine and every six months after that for the service to be covered by Medicare.

The Telemental Health Care Access Act would remove the in-person piece.

"So, you could both establish a patient relationship for payment purposes and continue to see a mental health practitioner in your home or wherever without ever having to go and visit them in person," Harper said.

Factors potentially holding back their passage

The bills that lawmakers are currently considering have one basic goal: to ensure telehealth remains a viable care delivery option for providers and patients.

Overall, most of the bills have bipartisan support and the likelihood that at least one will pass is high, said Harper.

In particular, the Connect for Health Act has tremendous support behind it.

"I just had discussions with Rep. Mike Thompson [D-CA] who's the act's primary sponsor, as well as his congressional staff, and their estimation is that it will get passed," Harper said.

But there are several factors that could hamper the passage of these bills, including cost.

"It really depends on how the CBO, the Congressional Budget Office, decides to score the legislation and how it does that ultimately will have a bigger impact on representatives' willingness to kind of get behind these rules," Harper said.

Back in 2008, when the Medicare Telehealth Enhancement Act was introduced, the CBO scored the legislation as very high on cost, Harper explained. This is why several barriers were put into place to restrict telehealth use, including limiting the originating sites for a telehealth visit.

Harper believes the cost issue going forward will likely be influenced by how telehealth is perceived by lawmakers, that is, whether the service is thought of as an addition to traditional care delivery or as a substitute.

"The CBO has always taken the position that telehealth is going to be an additive service and that the utilization is going to be high," he said. "It may not bring down other costs, and so at the end of the day, it gets a very expensive score from CBO, which puts politicians in a difficult bind."

Politicians don't want to be seen as adding to budget, and so if the CBO scores telehealth legislation as a large expense, they may not back the bills, Harper added.

Another factor is fraud and abuse concerns. As telehealth use skyrocketed amid the COVID-19 pandemic, regulators began cracking down on fraud and misuse. Just last month, the Department of Justice convicted a Florida-based pharmacy owner for participating in a $174 million telemedicine fraud, waste, and abuse scheme, as well as charged four people for being involved in a telehealth fraud scheme that allegedly swindled public and private payers out of $37 million.

But, according to Harper, these fraud schemes tend to be one-off issues, perpetrated by bad actors.

"At the end of the day, if there are bad actors, they will figure out a way to be a bad actor, but that's not a basis to legislate whether you provide a certain benefit to someone or not," he said.

Additional regulations needed to support telehealth

The bills currently being considered by Congress are broad, but there are other regulatory changes that need to be made to advance telehealth use.

One is ensuring reimbursement parity between telehealth and in-person care.

"If you make more money by having a patient come into the office versus seeing them through telehealth, nine times out of 10, you're going to say, oh yeah, come into the office," Harper said.

Several states, including New Jersey and Ohio, have taken matters into their own hands and passed laws that address reimbursement parity concerns.

Another issue that needs to be considered is licensure.

Many industry stakeholders are fighting for this flexibility to be made permanent, arguing that it will open up access for patients and provide much needed relief for hospitals strained by staffing shortages.

"There is, perhaps, talk about how do you create a national license? How do you create better reciprocity between different states?" Harper said.

Currently there is bill called the Equal Access to Care Act, which would allow licensed providers to treat patients in any state via telehealth for up to 180 days after the end of the public health emergency. But the legislation is stalled in both the House and Senate. 

Looking ahead, lawmakers need to think comprehensively about telehealth access, as the care modality is integrated further into the healthcare system along with complementary services, like remote patient monitoring.

Policymakers should be thinking about ways to support the development of a "a more seamless model for how we take care of patients that's really focused on the patient's interactions with practitioners and making sure that patients are in compliance with treatment plans," Harper said.

Correction: A previous version of this article mistakenly stated that the Equal Access to Care Act was passed in 2020. The article was updated on Jan. 19 to reflect that fact that the bill has not been passed.