If startups, clinicians, patients and anyone in the healthcare ecosystem is getting used to the relaxed telehealth regulations available since the pandemic hit roughly two and a half years ago, don’t get too comfortable. They are still temporary rules and Congress will ultimately need to act to make them permanent.
With the looming expiration of the Public Health Emergency — currently scheduled to end April 16 — experts argue that too much is at stake in terms of taking care of the most vulnerable people to go back to pre-Covid era telehealth regulations. But what will it take to convince Congress to keep the status quo of the relaxed telehealth laws?
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In a budget bill passed three weeks ago, Congress decided that when the pandemic is declared over — a decision that has been up for debate every 90 days — they will allow five months, or 150 days, for telehealth payment to continue the way it has been during the pandemic. This would mean that even if the public emergency were set to expire on April 16, lawmakers will have time for lawmakers to review data and decide whether or not they will make the relaxed Covid-era telehealth protocols permanent.
While a final report will not be available until later, legislation has become more favorable to telehealth over the past three years, and it looks like legislation will continue in that direction, explained T.J. Ferrante, a partner at Foley Lardner LLP and a member of the firm’s national Telemedicine & Digital Health Industry Team. But, the question of who will pay for it presents the biggest uncertainty now.
“If the laws say you can use telehealth, is anyone going to pay for it? Or will it be a patient paying out of pocket to get the convenience?” said Ferrante.
Before the Covid-19 pandemic, patients had to meet a “perfect storm of criteria” to qualify for payment, Ferrante said. They had to live in a rural area, and have an appointment at a qualifying doctor’s office or hospital. This limited people in urban areas from accessing telehealth services. For the past 2 ½ years, Medicare has been paying for telehealth as it would for an in-office visit.
The recent budget bill requires the Medicare Payment Advisory Commission (MedPAC) to study expanding telehealth services, which would mean amending the Social Security Act. MedPAC is an independent agency established to advise Congress on issues affecting the Medicare program. The report is due June 15, 2023, the same day as a separate Department of Health and Human Services Office of Inspector General report on fraud prevention measures has its deadline.
“Lasting legacy” of the pandemic
Kevin Dedner, founder and CEO of Hurdle, has tracked data showing that more people from historically underserved populations have accessed care during the pandemic due to telehealth. Hurdle provides telehealth services with a focus on culturally intentional care to the BIPOC community (Black, Indigenous and People of Color).
“What we’ve seen over the last two years is the largest increase in treatment-seeking behavior among African-Americans and Asian-Americans that we’ve ever seen,” Dedner said. “That means that people from these backgrounds are beginning to access or seek treatment who have never sought treatment before.”
He attributes this increased consumption of healthcare by historically under utilizers of care squarely as a result of access through telehealth.
Before the pandemic, telehealth comprised less than 1 percent of outpatient visits according to a report from Health System Tracker. But, during the early stages of the pandemic, this rose to 13 percent, followed by a drop to 8 percent in 2021. In another report from HHS, data showed that 43% of the time people accessed behavioral health services during the pandemic it was through telehealth. That includes attending group therapy, counseling, or other mental health services.
“The combination of the pandemic and the divisive social environment contributed to a need for mental health services that could only be answered by telehealth delivery,” said Dedner whose startup focuses on mental health. He calls this one of the “lasting legacies of the pandemic.”
According to ASPE Office of Health Policy, the highest rates of telehealth visits were among those with Medicaid (29.3%) and Medicare (27.4%), Black individuals (26.8%), and those earning less than $25,000 (26.7%), clearly showing that telehealth is an effective way to reach those populations that have historically been underserved.
Risks vs benefits
Fraud and bad actors in the past have shown that creating telehealth favorable legislation isn’t without risks, recalling the massive Medicare telefraud scheme, “Operation Brace Yourself,” in which 24 individuals were charged with over $1.2 billion in losses. The Department of Justice prosecuted the case in 2019, finding that the individuals created an elaborate operation to bill Medicare for unnecessary back, knee, and shoulder braces for patients they saw via telehealth, luring hundreds of thousands of elderly or disabled patients.
Despite the risk, there are ways to deploy the technology to safeguard against fraud. For example, looking at the length of patient visits (in some cases in the “Operation Brace Yourself” scheme, providers never interacted with a patient before prescribing a brace and then filing for Medicare kickbacks.) And also, by looking at the IP address of a patient and provider, according to Ferrante.
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It’s not as if healthcare is the only industry that faces the risk of fraud due to digitization. In fact, an expert said that the transition to digital health is reminiscent of the transition to digital banking.
“As industries digitize their risk for fraud often increases, but we’ve never let that deter us from moving forward. Take the banking industry for instance – when online banking was becoming popular, opportunities for bank fraud increased, but still the industry digitized,” said Dr. Cynthia Horner, medical director of telehealth company Amwell. “What it means however is we must become smarter and ensure that we have safeguards in place to prevent and detect fraud.”
For others, like Frank McGillin, CEO of the Clinic by Cleveland Clinic the benefits of expanding access to people far outweigh the risks.
“Relaxed state licensure requirements, for example, allow patients to connect with medical experts for their specific condition, regardless of geography,” McGillin said. “For patients in rural areas, who might otherwise have to travel long distances for specialty care due to lack of local availability and physician shortages, telehealth can mean the difference between obtaining needed care and struggling to manage complex conditions on their own.”
An unsolved problem
Even as the looming April 16 deadline approaches for the supposed end of the public health emergency, healthcare providers have some room for flexibility because the recent bill gives five months time for Congress to decide about permanent telehealth laws.
What the bill doesn’t provide, though, is a way forward for telehealth prescribers to prescribe controlled substances via telehealth, including life-saving treatment such as Suboxone, according to attorney Ferrante. These are treatments that people involved in Medical Assisted Treatment from opioid addiction rely on to prevent overdose and unintended deaths.
Referring to the omnibus bill extending Covid-era rules, Ferrante said it only solved about one-half of the problem. “It solves the ‘cliff problem’ for medical payments, but it does not solve the problem of the ability to prescribe controlled substances.”
According to the Ryan Haight Act, enacted by Congress in 2008 in response to internet pharmacies selling controlled substances, prescribers must first have an in-office visit with a patient before prescribing a controlled substance. This requirement became null during Covid and more people were able to access treatment for opioid addiction.
But, whenever the public health emergency expires, prescribers will immediately lose this benefit since they don’t qualify for the extension while lawmakers review data. This could be deadly for patients who need access to such prescriptions and may not be able to travel to an in-person appointment, Ferrante said.
“One day patients could wake up and that could be illegal and that could result in patient harm,” Ferrante said.
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