While the COVID-19 public health emergency (“PHE”) has driven significant change throughout health care, some of the more expansive changes relate specifically to the provision of care through telehealth technology (“Virtual Care”). Given the nature and extent of the PHE flexibilities, use of telehealth has skyrocketed. Medicare beneficiaries used telehealth for 43.5% of their primary care visits in April 2020, as compared to less than 1% in February 2020. Data from private insurers demonstrate a 2,938% increase in Virtual Care in 2020 as compared to 2019.
Will this trend continue? Most believe that it will. Bearing on this issue, though, will be the extent of any permanent change to the flexibilities currently in place.
Notably, lawmakers on the House Energy and Commerce health subcommittee met this past week to discuss the future of telehealth post-pandemic. Committee leaders from both parties voiced clear support to maintain loosened telehealth restrictions for Medicare beneficiaries post-PHE. High on the list of telehealth benefits, as repeatedly referenced during these hearings, is the benefit of increased access to care – particularly in rural areas.
Legislative Expectations: A bipartisan bill from the House telehealth caucus suggests the direction of upcoming telehealth legislation. The Protecting Access to Post-COVID-19 Telehealth Act of 2021 (H.R. 366) ensures the expanded use of telehealth after the PHE by eliminating restrictions on the use in Medicare and requiring a study on the use of the practices during the pandemic. Specifically, the proposed legislation:
- Eliminates most geographic and originating site restrictions on the use of telehealth in Medicare and establishes the patient’s home as an eligible originating site so patients can receive telehealth care at home and doctors can still be reimbursed;
- Prevents a sudden loss of telehealth services for Medicare beneficiaries by authorizing CMS to continue reimbursement for telehealth for 90 days beyond the end of the public health emergency;
- Makes the disaster waiver authority permanent, enabling HHS to expand telehealth in Medicare during all future emergencies and disasters; and
- Requires a study on the use of telehealth during COVID, including its costs, uptake rates, measurable health outcomes and racial and geographic disparities.
Although it remains to be seen whether this particular legislation will remain intact, given the degree of bipartisan support, we do expect to see permanent flexibilities approved prior to the expiration of the PHE. These flexibilities, however, will likely focus on reimbursement.
We do not expect that these flexibilities will address or resolve other telehealth-related challenges, such as licensure, scope of practice, insurance, prescriptions, privacy and other such considerations. Health care providers will need to remain mindful of, and be prepared to navigate, these remaining challenges, particularly when there is more financial incentive to offer services through telehealth.
Practical Takeaways
- Telehealth is here to stay. Legislative change to make certain telehealth flexibilities permanent, mainly in the context of coverage and reimbursement, is expected. These changes will facilitate sustained growth, much as we have seen during the PHE.
- Plan now for the provision of telehealth post-PHE, considering how best to operationalize the potential benefits of telehealth.
- Regulatory and professional oversight, as well as professional liability claims, will increase along with the expanded use of telehealth.
- Develop and maintain a strategy for the provision of services through telehealth, including a well-developed compliance plan and related policies to ensure that telehealth services are provided in manner that is legally compliant – particularly as reimbursement for these services is increasingly available.
If you have questions or would like additional information about telehealth, please contact:
- Chris Eades at (317) 977-1460 or ceades@hallrender.com;
- Regan Tankersley at (317) 977-1445 or rtankersley@hallrender.com;
- Abby Kaericher at (202) 780-2989 or akaericher@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
