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Post-Covid Telehealth Rules: What Providers Need to Know

May 19, 2022, 8:00 AM

The Covid-19 public health emergency (PHE) was recently extended another 90 days through July 15. Many are questioning whether this may be the last extension. This begs the question: What does this mean for the future of telehealth?

Under the omnibus legislative package that was signed into law in March, certain telehealth flexibilities will continue for another 151 days, or approximately five months, beyond the end of the PHE. Assuming the PHE in fact ends July 15, that would equate to mid-December.

These includes lifting geographic and site-of-service requirements so that Medicare patients can access telehealth from the comfort of their homes and other convenient locations, regardless of whether or not they live in a rural area.

It will also postpone in-person requirements for mental telehealth visits, extend coverage for audio-only services and telehealth services rendered by federally qualified health centers and rural health clinics, and expand the types of professionals that can bill Medicare telehealth visits, among other provisions.

Patient Satisfaction With PHE Changes

Early evidence suggests high overall patient satisfaction and a significant decline in no-show visits thanks to telehealth visits. However, policy makers are wary of making more permanent changes until they receive more conclusive data to assuage concerns that telehealth replaces in-person services and does not merely create additional services and lead to increased costs or fraud.

Several telehealth bills are being debated that would extend flexibilities for a certain duration of time to allow for more data to be collected. The Telehealth Extension and Evaluation Act (H.R. 7573/S. 3593), for example, would extend current Medicare telehealth reimbursement waivers and allow practitioners to prescribe controlled substances via telehealth for two years after the end of the PHE.

Notably, the bill includes certain guardrails against potential fraud, including audits for high-cost medical devices and labs. The congressional advisory board MedPAC and a myriad of private sector groups have endorsed this concept as an interim step to collect more data which could open the door to a permanent telehealth expansion.

Congress returned in May to a fresh legislative work period and a lengthy to-do list. Most observers believe it is important to get this work done before August, when its attention will shift to the midterm elections.

Action on telehealth within that window remains possible but is not guaranteed. In its favor is that telehealth generally has bipartisan support.

However, the added breathing room afforded by the omnibus bill perhaps tips the scale in the direction of Congress delaying action on telehealth until later in the year, when it is more likely to be included in a broader end-of-year package.

So what does all of this mean for providers? There’s a reasonable likelihood that many, but not all, telehealth flexibilities will continue for at least the next couple of years as policymakers collect additional data. Certain provisions have broad industry and bipartisan support in Congress and are therefore more likely to stick around, such as allowing patients to continue receiving services in their homes and in non-rural areas.

Thornier Issues Could Persist

There are other thornier issues, however, which have a lesser chance of being addressed permanently at the federal level for which providers should be prepared.

Topping that list, cross-state licensure, which would require dismantling and replacing the medical review board structure and is running into opposition from some powerful industry groups. Certain states have elected to negotiate licensure agreements on their own. Providers should check their state laws to see if there are any reciprocity agreements with other states.

Enforcement discretion over communicating with patients through non-HIPAA compliant communications platforms is another temporary flexibility that providers should be prepared to sunset with the PHE. There are a suite of HIPAA-compliant products available so the relative impact on practices may be small, but it means patients will no longer be able to access telehealth services using non-HIPAA-protected applications such as FaceTime or Skype and will have to download a HIPAA-compliant application or portal to their smart devices.

This should not derail telehealth usage too much, but will be an extra logistical hurdle for patients to work through that may require additional support from administrative practice staff.

Similarly, though temporarily extended for five months under the omnibus package, permanent reimbursement for audio-only services is considered uncertain at best so providers should not become overly reliant on this. They may want to start taking time to help patients transition to audio-visual or plan to allocate for staff time to do so in the future.

Notably, the Centers for Medicare & Medicaid Services (CMS) is permanently allowing audio-only for mental health services provided the practitioner has the capability to deliver audio-visual but is using audio only based on patient preferences, and this is explained in the patient’s medical record. We could see this exception-based approach spread to other types of services.

The omnibus package also temporarily delayed face-to-face requirements for mental health services, which are seen by Congress as a “guardrail” to help protect against fraud and overuse as Congress tests more permanent telehealth policies.
However, face-to-face requirements have come under criticism for preventing access to telehealth services, particularly for underserved patient populations. The choice to delay these requirements after initially stipulating them shows Congress’ level of uncertainty and could be a sign they are willing to revisit the topic in the future.

For now, practices should be aware that there are a couple of limited exceptions on the books for Medicare telehealth visits that were finalized in last year’s Medicare physician fee schedule. July will be a telling month for the short-term future of Medicare telehealth services as we will find out whether the PHE will be extended for another 90 days and whether CMS will finalize additional changes in their 2024 Medicare physician fee schedule proposed rule.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Suzanne M. Joy is a senior public affairs adviser in Holland & Knight’s Washington, D.C., office and a member of the firm’s Public Policy & Regulation Group. She focuses her practice in health-care policy and advocacy.