Last week, new legislation was introduced in the U.S. House of Representatives that would require Medicare to reimburse certain telehealth services post the public health emergency period. If passed, the bipartisan Helping Ensure Access to Local TeleHealth Act of 2020 or HEALTH Act of 2020 (the “HEALTH Act of 2020”) would codify Medicare reimbursement and allow reimbursement for telehealth services provided by federally qualified health centers (“FQHCs”) and rural health clinics (“RHCs”).
The HEALTH Act of 2020 would permanently remove originating site facility and location requirements for distant site telehealth services provided by FQHCs and RHCs and qualify telehealth services provided to an individual at these sites as a visit. The law would also extend benefits and access to more patients (particularly high-risk patients) regardless of their geographic location.
Telehealth has proven to be a vital tool in combating COVID-19 by allowing patients to receive quality care while combating the virus. Certain data shows that during the past few months, virtual visits have increased more than 40 times in some parts of the country. The HEALTH Act of 2020 is no doubt influenced by the flexibility around telehealth in response to COVID-19.
In addition to the HEALTH Act of 2020, there has been bipartisan support for extending the recent expansions in telehealth post-pandemic in order to make it easier for providers to provide telehealth services to patients. In fact, Congress and the Centers for Medicare & Medicaid Services (“CMS”) have received numerous requests to expand telehealth guidelines in light of the success of telehealth expansion during the pandemic. For example, the American Telemedicine Association (the “ATA”) wrote a letter to Congress on April 30, 2020 with a number of recommendations aimed at permanently implementing flexible arrangements around telehealth. The ATA suggested a number of innovations including, prioritizing telehealth policy and elevating the Office for the Advancement of Telehealth, which is currently categorized under the Office of Rural Health Policy in the Health Resources and Services Administration and incorporating telehealth and Remote Patient Monitoring platforms into the National Health Security Strategy.
Further, CMS Administrator Seema Verma has recognized the value of telehealth and has indicated that it would not be a good thing for patients to have to revert to in-person visits. That being said, Administrator Verma did indicate that the government would have to (i) evaluate whether equalizing payments for virtual visits and in-person visits is appropriate going forward, and (ii) revisit the laws around professional licensing and the cross-border practice of medicine – both critical issues for the expansion of telehealth.
Finally, as a sign of the widespread interest in Congress to extend and expand telehealth beyond the current healthcare crisis, a bipartisan group of senators sent a June 16, 2020 letter to both Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer calling for permanent changes to expand telehealth access post-pandemic. In addition, during a June 17, 2020 meeting of the Senate Health, Education, Labor, and Pensions (HELP) Committee, Senator Lamar Alexander (R-Tenn.), Chairman of the HELP Committee, said that he wants to make permanent two telehealth changes brought about by the COVID-19 pandemic: nixing the so-called originating site rule and expanding the scope of reimbursable services.
With all this attention being paid by both the Senate and the House to telehealth as an important tool to promote healthcare access post-pandemic, it will be interesting to see if the HEALTH Act of 2020 and the Senate’s legislative efforts will result in the codification of CMS telehealth policy and other changes that have been a centerpiece of the many federal public health initiatives that have been implemented in response to the current healthcare crisis.
We will continue to monitor changes in the law and regulations surrounding telehealth and publish additional pertinent updates as they become available.