MedCity Influencers, Health Tech, Payers

Will Congressional action cement the vaunted status of telehealth beyond the pandemic?

Providers, health systems and patient groups who want to see telehealth survive beyond the federal public health emergency need to engage their lawmakers and associations now to demonstrate the need and utility for continued telemedicine.

Covid-19 continues to upend the American healthcare system more than two years into the pandemic. While acute metrics like hospitalizations and deaths have trended downward or plateaued throughout most of the country in recent months, everything from staffing to vaccine adherence, to new crises in the forms of mental health and long Covid continues to plague the entire system. The only port in the storm seems to be the continued increased access to, and reimbursement of, telehealth. However, its long-term use as a mainstream healthcare option lies in the hands of the U.S. Congress.

In the early days of the pandemic, when nearly all non-essential, non-Covid in-person care ground to a halt, CMS and Congress were quick to open long-prohibited paths to virtual care. Care site and geographical restrictions were lifted, audio-only services were permitted and paid for, onerous state licensure requirements were waived; even HIPAA received new enforcement latitude. As a result, providers and health systems saw their telehealth visits spike exponentially over a matter of weeks.

Due to the slow expansion of telehealth reimbursement, many providers were unprepared and had to scramble to meet the new technological demand—even systems with more robust telemedicine offerings and capabilities pre-COVID had to figure out how to handle the massive spike in online care. This need to rapidly scale was challenging, especially as the Administration tied its newfound regulatory permissiveness to the ongoing federal public health emergency (PHE) which has been renewed in 90-day increments since March 2020.

Since the start of the PHE, each of those 90-day windows has been left unrenewed until the last minute, heaping stress and uncertainty upon providers and health systems. In 2021, the Biden Administration promised 60-days’ notice before letting the PHE expire, which was a slight improvement, but still left providers mired in uncertainty about the future of PHE-attached telehealth waivers and whether to invest in health IT products and processes.

Telehealth advocates have been pushing for its broader use since long before anyone had ever heard of SARS-COV-2, and while progress had been made prior to 2020, it was very slow-going and incremental. As providers and patients became accustomed to wider use of telehealth, advocates saw an opportunity to make quicker, more robust progress.

There were high hopes of including a one- or two-year extension of all waivers with the budget that passed in March of 2022. Negotiations, however, broke down over the same cost concerns that have long hampered telehealth legislation. In the end, Congress passed a 151-day post-PHE extension of most of the waivers. Assuming the PHE expires in July, absent further legislation, the telehealth access that patients and providers have come to rely on will end in December.

Procedurally this means any further progress will take place during the lame duck session, and success could be dictated by the outcomes of the November midterm elections. With control of one or both chambers likely to flip to Republicans, and many members on both sides of the aisle retiring, there may be more political will to get something done, or there may be continued opposition.

One political benefit to telehealth’s chances is that members of Congress who have declined supporting long-term telehealth legislation may be more willing to take hard—or what they deem expensive—votes after the election, either because they lost or because they have some breathing room until the next political contest.

Advocates are gearing up for the political fight to continue over the summer and escalate after the election. Lawmakers looking to make a case for continued telehealth availability have asked for data on cost, outcomes, access, overhead, and anything else stakeholders can provide. There is a particular interest on Capitol Hill in understanding how telehealth visits have leveled off after the initial exponential shock to the system in spring of 2020.

A mistaken belief that increased telehealth utilization will be an additive cost to the healthcare system continues to pervade Congress, so data that supports cost-savings or neutrality as a result of increased telehealth will be most critical. While the Democrats are still in charge of both chambers and the White House, they want to know how telehealth impacts health equity in terms of access and outcomes, not wanting to foster new policies that will deepen the healthcare divisions that were laid bare by the pandemic.

Telehealth proponents have the best chance of winning permanent reform come December by presenting a united front. But there is also strong possibility that factions will emerge, and this will become an adversarial process with parties seeking to protect their piece of the telehealth pie.

Certain specialties, like mental health and dermatology, are deemed as potentially better candidates for continued virtual care reimbursement, and the champions of virtual home health formed a coalition to protect it. If advocates see opportunities shrinking, they may go to their corners to fight for whatever they can get, even if other specialties, care sites and practitioners are left out as a result.

Providers, health systems and patient groups who want to see telehealth survive post-PHE need to engage their lawmakers and associations now to demonstrate the need and utility for continued telemedicine. Providers should also prepare themselves for a worst-case scenario if no permanent or long-term policy changes are passed and ready themselves for HIPAA enforcement to step back up either way.

Unfortunately, this 151-day extension doesn’t offer much more certainty than the 90-day PHE extensions, so providers still must make difficult decisions regarding technology investments. But, given how much patients have embraced telehealth over the past two years, and considering growing regulatory requirements around interoperability, providers should assume that technology solutions, EHRs and related platforms are here to stay, and act accordingly.

Photo: elenabs, Getty Images


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Elizabeth Westbrook

Elizabeth Westbrook, is the senior advisor for government relations at Buchanan Ingersoll & Rooney. Liz has spent over a decade in D.C. and in politics with experience on the campaign side, on Capitol Hill, and in various federal agencies, including the Office of the National Coordinator for Health IT, Patient-Centered Outcomes Research Institute and Veterans Health Administration. Liz offers clients a unique blend of regulatory counsel and legislative advocacy. She is able to provide an informed perspective on government and engage effectively with lawmaking and rulemaking to give clients a voice in those processes.

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