Congress continues to signal interest in long-term telehealth
DLA Piper attorneys have been monitoring changes in telehealth law driven by the novel coronavirus pandemic (COVID-19). In this alert, we highlight some recent statements and proposals from members of Congress and state governments that show how interest in telehealth services generated by the pandemic may lead to lasting changes in healthcare policy.
Telehealth technologies, such as secure videoconferencing, health data storage and forwarding, and remote monitoring of patients, permit patients to access many beneficial services from skilled professionals at a distance. For decades, telehealth services have had the potential to offer unique benefits, such as allowing patients in rural areas to avoid a long trip to a far-off provider’s office, or ensuring that doctors whose patients have rare conditions can get relevant counsel from top experts regardless of their location. But some state and federal laws have continued to inhibit the full deployment of telehealth throughout the US healthcare system.
COVID-19 has dramatically illustrated the advantages of telehealth: where an evaluation or treatment can be safely performed without the need for a face-to-face encounter, many practitioners and patients would prefer to avoid unnecessarily sharing air and risking COVID-19 transmission in either direction. We have been monitoring how federal and state lawmakers are clearing the regulatory tracks for telehealth in the age of COVID-19. Past alerts have detailed how, for example, states are ensuring that professional practice rules accommodate appropriate remote care, and how Congress has paved the way for the Centers for Medicare and Medicaid Services (CMS) to expand federal reimbursement for telehealth services under the Medicare Program.
Now some states are moving to transform their new telehealth rules from special emergency measures into permanent adjustments to how they fund and regulate healthcare. On July 6, Colorado Governor Jared Polis signed a bill expanding access to telehealth for Colorado residents by prohibiting insurers from requiring an established in-person practitioner/patient relationship or imposing location or additional licensure requirements as a condition for telehealth coverage. The law further establishes remote patient monitoring as a covered service and eliminates restrictions on HIPAA-compliant technologies. Idaho Governor Brad Little signed a sweeping executive order on June 22 making permanent more than 150 emergency rules enacted to combat the pandemic, including telehealth flexibilities to make healthcare more accessible and affordable for Idaho residents. Further, Missouri Governor Michael Parson extended his telehealth executive order through December 30, 2020.
These state actions are important because many of these flexibilities, both federal and state, are tied to public health emergency declarations. The length of time a state of emergency may remain in effect varies across states, leaving many healthcare providers uncertain about how long they might be able to provide these telehealth services and to which patients. As the clock ticks down on the officially-declared national emergency, slated to end at the end of this month, action is needed by both federal and state agencies to continue to extend regulatory flexibilities to provide telehealth, particularly as COVID-19 cases continue to rise in many states.
CMS has expressed public support for extending telemedicine flexibilities but has recognized that elimination of many of the regulatory barriers will require statutory changes by Congress. Certain limited actions, such as expanding telehealth in home health and the Medicare Advantage Program, are within the purview of CMS, but Section 1834(m) of the Social Security Act significantly restricts Medicare coverage of telehealth services, and only Congressional action can lift those barriers.
This month, a bipartisan group of 38 US senators joined the chorus of advocates calling on CMS to find ways to ensure that telehealth funding won’t dry up once the threat of COVID-19 eases. In a letter to CMS Administrator Seema Verma and HHS Secretary Alex Azar, the senators ask CMS to report back to Congress with a list of changes that Congress itself would need to make in order for CMS to maintain broad coverage for telehealth. At present, and as noted above, Section 1834(m) authorizing Medicare payment for telehealth services includes some extremely restrictive requirements. Congress authorized CMS to waive those requirements earlier this year, but the waiver only lasts for as long as COVID-19 is officially considered a “public health emergency.” Because the Medicare program serves over 60 million elderly and disabled Americans, its policies can have a major effect on the rest of the healthcare reimbursement landscape.
Meanwhile, Republican senators and Democratic House representatives have proposed legislation to help address a major barrier to telehealth: cross-state licensing. In most states, the patient’s location determines which state’s licensing laws and practice standards apply. Some states have created special exemptions to permit out-of-state professionals to provide limited forms of telehealth without a license, while others have established special pathways for out-of-state licensees to obtain permission for in-state telehealth treatment. One of the provisions of HR 6637, the Health Equity and Accountability Act of 2020, would require the federal Department of Health and Human Services to “encourage and facilitate the adoption of provisions allowing for multistate practitioner practice across State lines” for Medicare beneficiaries. Meanwhile, SB 3993, the Equal Access to Care Act, would permit cross-state healthcare practice based on the practitioner’s “primary state” license during the pandemic − and would direct all federal agencies to identify and undo any regulations that interfere with that objective.
Absent these statutory and regulatory changes, we are likely to see a return to the pre-COVID-19 status quo, leaving many Americans without accessible healthcare options while the pandemic continues to unfold across the country and fears about contracting the virus lead people to put off wellness checks and treatment for what they perceive to be minor health issues. In fact, Becker’s Hospital Review published an article on July 9 citing a recent physician survey conducted by Sage Growth Partners, which found that despite skyrocketing telehealth services during the pandemic, most physicians predict fewer than 10 percent of their visits will be virtual by next year.
It is clear that federal and state governments do not want to see this happen, so the question now becomes: what are they going to do about it?
DLA Piper continues to closely monitor federal and state governmental actions as this situation unfolds. For information on other ways COVID-19 is changing the healthcare industry and how your company can help serve patients, please contact your DLA Piper relationship partner or any member of our healthcare industry group.
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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.
