Congress, states hold the keys to telehealth expansion

 

An executive order signed Monday directed a swath of federal agencies to expand telehealth services after the pandemic ends. But at this point, much of that work will be up to Congress and state governments.

The directive ordered the Department of Health and Human Services to draft up a policy that would keep Medicare’s expanded telehealth coverage after the Covid-19 pandemic ends, and for multiple agencies to create a plan to improve communications infrastructure in rural areas.

The Centers for Medicare and Medicaid Services, too, announced plans to add more covered telehealth services next year to its proposed Medicare physician fee schedule.

Ultimately, Congress and state legislators will have the final say in shaping what telehealth looks like in the near future.

“I think the administration is pushing as far as they can within reason in terms of making sure (telehealth) is reimbursed and trying to put forward programs to expand infrastructure and access, particularly in rural America,” American Telemedicine Association Director of Public Policy Kyle Zebley said in a phone interview. “But at the end of the day, as helpful as these actions have been, so much of this is going to by necessity require changes in statute and laws passed by Congress to really seal in the changes by industry we’ve had these past several months.”

Since the start of the Covid-19 pandemic, states have rolled out dozens of temporary actions to expand what telehealth services are covered by Medicaid, allow providers who are licensed out-of-state to provide care, and in some cases, require commercial insurers to pay the same for telehealth visits as in-person visits.

At the same time, CMS lifted restrictions, allowing Medicare to cover telehealth visits that take place in patients’ homes, and for a wider variety of services.

The result has been an explosion of telehealth visits, with roughly 10.1 million Medicare patients using telehealth between mid-March and July, according to CMS.

The big caveat, then, is that CMS got the authority to waive these telehealth restrictions through the CARES Act.  Once the public health emergency ends, everything would go back to how it was before, unless Congress gives them the authority to keep some of these changes.

“Congress actually holds the keys to this one because they have those requirements in statute,” Jacob Harper, an associate with Morgan Lewis, said in a phone interview. “The Secretary of Health and Human Services can’t actually override those things.”

There’s already legislation in the works to address this. A House bill introduced last month would give HHS authority to waive or change Medicare telehealth requirements during emergencies “and for other purposes.”

“A lot of this stuff — everyone in the industry would breathe a lot easier if it was passed with legislation,” Zebley said.

But that still leaves two of the biggest remaining hurdles to telehealth to be sorted out: reimbursement and licensing.

 

Two big hurdles

Currently, with the Covid-19 pandemic, Medicare is paying the same for telehealth visits as in-person visits. But in the future, if telehealth makes up a much larger portion of total visits, could that change?

“That’s going to be one of the critical questions that they’re going to have to deal with,” Harper said.

Private insurers have also been grappling with that question. While BlueCross BlueShield of Tennessee was one of the first to say it would expand its telehealth coverage after the pandemic, it hasn’t yet said how much it would pay for those services.

On the state level, there’s been more momentum. While most states already required coverage parity from private insurers, a handful of states added temporary requirements that they must pay the same amount for telehealth as in person visits. And three states — California, Arizona and Washington — have laws that would require payment parity starting in 2021.

That leaves licensing, the main restriction keeping physicians from taking appointments across state lines.

For most states, the solution has been to join the Interstate Medical Licensure Compact, which effectively streamlines the licensing process for physicians who want to work in multiple states. Some of the most populous states, including California, Texas, Florida and New York, are not currently part of the compact. But six states — including New York — have introduced legislation to join the compact.

While it’s a quick solution, it’s still not perfect. The costs add up: on top of the initial $700 to participate in the compact, most states charge more than $300 to practice in their state, with a few charging more than $700.

“I think that could be a mechanism to better this, but the cost of the licensing issue is a tricky one,” Harper said. “Each state has an incentive to protect doctors and personnel who are already licensed through that state.”

The bottom line: while telehealth has certainly seen its moment in the past few months, it will still take a big push from many different entities for the momentum to continue.

“To make this grand experiment really work, I think you need buy in from every stakeholder at some level,” Harper said. “Everyone needs to be on board here and I think just about everyone is.”

 

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