As the COVID-19 pandemic continues across the United States, states, payers, and providers are looking for ways to expand access to telehealth services. Telehealth is an essential tool in ensuring patients are able to access the healthcare services they need in as safe a manner as possible. In order to provide our clients with quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a federal and comprehensive 50-state tracker for policy, regulatory and legal changes related to telehealth during the COVID-19 pandemic. Below is the executive summary, which outlines federal developments from the past two weeks, new state-level developments, and older federal developments. The full tracker with details for each state is available through Manatt on Health, Manatt Health's premium subscription service. For more information, contact Jared Augenstein at jaugenstein@manatt.com.
New Federal Developments
New Item | Activity |
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H.R. 207: Advanced Safe Testing at Residence Telehealth Act of 2023 Introduced January 9, 2023 |
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H.R. 2617: Consolidated Appropriations Act, 2023 Passed December 29, 2022 |
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New State-Level Developments
Note: As indicated in the table below, several states have recently taken action to update, continue, or renew their state of emergencies for COVID-19 in response to the rise of new cases linked with the Omicron variant. These updates are highlighted below because in many states, temporary telehealth flexibilities are tied to the status of state of emergency declarations.
State | Activity |
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Delaware |
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Payment Parity Permanent State Laws and Statutes
Payment Parity requires that health care providers are reimbursed the same amount for telehealth visits as in-person visits. During the COVID-19 pandemic, many states implemented temporary payment parity through the end of the public health emergency. Now, many states are implementing payment parity on a permanent basis. As portrayed in Figure 1, as of January 2023, 21 states have implemented policies requiring payment parity, 6 states have payment parity in place with caveats, and 23 states have no payment parity.
Figure 1. Map of States With Laws Requiring Insurers to Implement Payment Parity (as of January 2023)
Federal Developments More than Two Weeks Old
Executive Branch Activity
Policy | Details |
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Released November 7, 2022 |
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Released November 2, 2022 |
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Released September 15, 2022 |
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Policy | Details |
Announced August 18, 2022 |
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Released July 7, 2022 |
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Issued June 13, 2022 |
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HHS Announces $16.3 Million to Expand Telehealth Care in the Title X Family Planning Program Announced May 10, 2022 |
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Omnibus FY 2022 Spending Bill |
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In January 2022, CMS released "CARES Act Telehealth Expansion: Trends in Post-Discharge Follow-Up and Association with 30-Day Readmissions for Hospital Readmissions |
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In January 2022, CMS released "Changes in Access to Medication Treatment during COVID-19 Telehealth Expansion and Disparities in Telehealth Use for Medicare Beneficiaries with Opioid Use Disorder" |
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Released on Jan. 14, 2022 |
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On December 6, CMS released updates to the State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth, COVID-19 Version. |
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On December 3, the Patient-Centered Outcomes Research Institute (PCORI) Board of Governors approved $23.5 million to focus on telehealth and mobile health strategies. |
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On November 23, HHS announced $35 million in funding for telehealth in the Title X Family Planning Program. |
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On November 12, CMS released a Preliminary Medicaid & CHIP Data Snapshot. |
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On November 11, CMS finalized the Physician Fee Schedule Rule. |
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On November 9, the FCC approved 75 new projects funded under the COVID-19 Telehealth Program. |
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On October 15, HHS announced the renewal of the Public Health Emergency (PHE). |
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On August 26th, the FCC approved 62 new projects funded under the COVID-19 Telehealth Program. |
The projects total $41.98 million for Round 2 of the COVID-19 Telehealth Program. The funding will be used to provide reimbursement for telecommunication services, information services, and connected devices necessary to enable telehealth. |
On August 18, the Biden Administration invested over $19M to expand telehealth for rural and underserved communities. |
The Biden Administration announced a series of key investments -- totaling $19 million -- that will strengthen telehealth services in rural and underserved communities and expand telehealth innovation and quality nationwide. The Health Resources and Services Administration (HRSA) will invest in the following programs:
Telehealth Centers of Excellence (COE) Program: $6.5M will be awarded to 2 organizations to evaluate telehealth strategies and services to improve care for rural medically underserved communities with high rates of chronic disease and poverty. |
On July 23rd, the Centers for Medicare and Medicaid Services (CMS) released the proposed CY 2022 Physician Fee Schedule proposing to extend telehealth benefits. |
CMS is proposing to:
For more information regarding the Final CY2022 Physician Fee Schedule, please see our Manatt Insights summary. |
On July 19th, HHS announced the renewal of the Public Health Emergency (PHE). |
The COVID-19 PHE will be renewed for another 90 days, beginning on July 20 (the date the PHE was previously scheduled to expire) and extending through October 18, 2021. This update enumerates the key regulatory flexibilities and funding sources that are linked to the PHE, as well as key emergency measures with independent timelines that are not directly affected by the PHE renewal. |
On June 17th, the Federal Communications Commission (FCC) Commission issued updated guidance on the Connected Care Pilot Program. |
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On May 26th, the Department of Justice (DOJ) announced several criminal charges for fraudulently using COVID-19 flexibilities, including those related to telehealth. |
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On May 11th, the U.S. Department of Health & Human Services (HHS) awarded funding to the Maternal, Infant, and Early Childhood Home Visiting (MIECHV) Program. |
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On May 6th, the Centers for Medicare & Medicaid Services (CMS) updated the Risk Adjustment Telehealth and Telephone Services During COVID-19 FAQs. |
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On May 20th, the U.S. Department of Health & Human Services (HHS) announced the expansion of Pediatric Mental Health Care Access Programs. |
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On May 19th the Government Accountability Office (GAO) released Medicare and Medicaid COVID-19 Program Flexibilities and Considerations for their Continuation. |
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On April 15th the Federal Communications Commission (FCC) announced the second round of the COVID-19 Telehealth funding will open April 29th. |
Appropriated by the Consolidated Appropriations Act, the $250 million reimbursement program will support projects aimed at boosting access to connected health services through better broadband resources. In an effort to promote transparency on how the funds are distributed, the FCC is seeking comment on changes to the Program, including the metrics used to evaluate applications for funding, and how to treat applications filed in Round 1 of the program. |
On April 12th the FDA lifted restrictions on telehealth abortions during the PHE. |
Healthcare providers will be allowed to prescribe abortion-inducing medication via telehealth, without the usual required in-person examination until the end of the PHE. |
On April 12th, HHS announced the Rural Maternity and Obstetrics Management Strategies (RMOMS) program. |
The $12 million program will fund three projects over four years to allow awardees to test models to address unmet needs for underserved populations in rural America. One of the focus areas for the program includes telehealth and specialty care. |
On April 5th, the U.S. Department of Agriculture (USDA) began accepting applications for the USDA Distance Learning & Telemedicine Grant Program (DLT). |
The program makes $44.5 million available to helps rural communities acquire the technology and training needed to connect medical professionals with patients in rural areas. Awards can range from $50,000 to $1 million. Applications must be received by June 4, 2021. |
On March 30th, the Centers for Medicare & Medicaid Services (CMS) expanded Medicare coverage for certain services delivered via telehealth. |
CMS added several audiology and speech-language pathology related services to the list of authorized telehealth services to Medicare Part B beneficiaries during the PHE. The PHE is expected to last through at least the end of 2021. |
On February 26th, HHS Office of the Inspector General (OIG) released a statement clarifying "telefraud" schemes and telehealth fraud. |
OIG clarified in a letter the difference between 'telefraud' and 'telehealth fraud'. Nothing that much of its focus has been in the former which generally combine sham phone calls to fraudulently prescribe durable medical equipment or high-cost diagnostic tests. OIG noted that it is continuing work to ensure telehealth delivers quality, convenient care for patients and is not compromised by fraud. |
On February 25th, the USDA announced it is investing $42.3 million in distance learning and telemedicine infrastructure. |
USDA announced an investment of $42.3 million ($24 million provided through the CARES Act) to help rural residents gain access to health care. The funding is expected to benefit five million rural residents. |
On February 25th, the FCC approved the Emergency Broadband Benefit. |
The FCC approved a new program which will provide discounts of up to $50 per month towards broadband service for low-income households, and up to $75 per month for households on Tribal lands. There will also be a one-time discount of up to $100 on a computer, laptop, or tablet. The start date for the program has not yet been established. |
On January 19th, HHS' OIG released an updated list of its Active Work Plan Items. |
HHS OIG announced it is conducting the Audit of Home Health Services Provided as Telehealth During the COVID-19 Public Health Emergency and the Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency. |
On January 15th, the FCC announced the first round of grants for the Connected Care Pilot Program. |
The FCC has awarded a total of $26.6 million to 15 pilot projects with over 150 treatment sites in 11 states. The Pilot aims to award $100 million over three years to improve broadband connectivity in underserved parts of the country where access is limited. |
On January 15th, CMS released a Preliminary Medicaid & CHIP Data Snapshot. |
It includes information on services delivered from the beginning of the PHE through July 31, 2020, including a snapshot of services delivered via telehealth among Medicaid and CHIP beneficiaries. |
On January 12th, HHS invested $8 million in a new Telehealth Broadband Pilot Program. |
$6.5 million was awarded to the National Telehealth Technology Assessment Resource Center and $1.5 million was awarded to the Telehealth-Focused Rural Health Research Center. The program is aimed at expanding broadband connectivity in rural parts of Alaska, Michigan, Texas, and West Virginia where lack of resources is a major barrier to telehealth adoption. |
On December 29th, the Department of Labor's Wage and Hour Division issued guidance for Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA). |
Employees can permanently use telehealth to establish a serious health condition that would qualify them for taking time off from work under the FMLA. The Wage and Hour Division (WHD) will consider telemedicine an "in-person" visit. |
On December 3rd, HHS issued an amendment to the Public Readiness and Preparedness (PREP) Act. |
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On December 1st, CMS finalized the Physician Fee Schedule Rule (previously
proposed on August 4th) which make certain Medicare telehealth
flexibilities permanent and extend others for the remainder of the
year in which the public health emergency (PHE) ends. |
Initial Rule: CMS finalized several changes to the Medicare telehealth covered services list. First, CMS is adding permanent coverage for a range of services, including group psychotherapy, low-intensity home visits, and psychological and neuropsychological testing, among others. Second, CMS has finalized temporary coverage for certain services through the end of the calendar year in which the COVID-19 PHE ends, including high-intensity home visits, emergency department visits, specialized therapy visits, and nursing facility discharge day management, among others. Finally, CMS is indicating which services that have been covered on a temporary basis during the PHE it will not to cover on a permanent basis once the PHE ends. This includes services such as telephonic evaluation and management services, initial nursing facility visits, radiation treatment management services, and new patient home visits, among others. Notably, after significant public comment supporting the addition of more services to the list of services covered through the calendar year in which the PHE ends, CMS included extended coverage for several additional services that it had proposed ending coverage for at the end of the PHE. Prior to the PHE, given statutory restrictions that telehealth services must be delivered via a "telecommunications system," which CMS has long-interpreted to preclude audio-only technology, CMS only covered certain audio-only services defined as communication technology-based services (CTBS), which are not considered Medicare telehealth services. During the PHE, recognizing that in-person visits posed a high risk of infection exposure and that not all providers and patients had access to video technology, CMS established temporary coverage for audio-only telephone (E/M) visits (CPT codes 99441-3). CMS is finalizing that at the end of the PHE, coverage for these audio-only telephone (E/M) visits will end given the statutory restrictions on "telecommunications systems." However, recognizing that audio-only visits could still be beneficial, for CY 2021, CMS is establishing on an interim basis a HCPCS code, G2252, for CTBS audio-only services of 11-20 minutes of medical discussion. This code supplements existing code G2012 which is a CTBS audio-only service of 5-10 minutes of medical discussion. In addition to the changes to the telehealth covered services list, CMS is finalizing that the 30-day frequency limit for subsequent nursing facility visits provided via telehealth be revised to a 14-day frequency limit. CMS is also finalizing that additional types of providers—including licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists, and speech-language pathologists—be permitted to bill for brief online assessment and management services, virtual check-ins, and remote evaluations and has added new codes for these services. On a temporary basis, CMS finalized a policy to allow for virtual supervision using "interactive audio/visual real-time communications technology" (i.e. two-way live video), by revising the definition of "direct supervision" to include virtual presence. This will allow "incident to" services to be provided if furnished under the supervision of a virtually present physician or nonphysician practitioner in order to reduce infection exposure risk. CMS will continue allowing virtual supervision through the later of the end of the calendar year in which the PHE ends or December 31, 2021. CMS finalized as proposed several changes to coverage of remote physiologic monitoring (RPM) services. CMS finalized that at the conclusion of the PHE, it will once again require that practitioners have an established patient relationship in order to initiate RPM services and that 16 days of data for each 30 days must be collected in order to meet the requirements of CPT codes 99453 and 99454. CMS also finalized that practitioners may furnish RPM services to beneficiaries with acute conditions—previously coverage had been limited to beneficiaries with chronic conditions. In addition, CMS finalized that consent may be obtained at the time the RPM service is furnished; that auxiliary personnel (including contracted employees) may furnish certain RPM device setup and supply services; that data from the RPM device must be automatically collected and transmitted rather than self-reported; and that for the purposes of discussing RPM results, "interactive communication" includes real-time synchronous, two-way interaction such as video or telephone. In addition, Medicare Diabetes and Prevention Program (MDPP) providers who use telehealth will continue to be reimbursed through Medicare during the remainder of the COVID-19 PHE and any future applicable 1135 waiver event when in-person care delivery is disrupted. Coverage for virtual-only DPPs will not continue after the PHE. January 2021 Update: Clarifies that the
20-minutes of intra-service work associated with CPT codes 99457
and 99458 includes a practitioner's time engaged in
"interactive communication" and time engaged in
non-face-to-face care management services during a calendar
month. For more information regarding the Final CY2021 Physician Fee Schedule, please see our Manatt Insights summary. |
On November 20th, HHS published two rules that finalize reforms to the regulatory framework that governs fraud and abuse in Medicare and Medicaid programs. |
HHS's newly finalized regulations remove historical barriers to collaboration between providers and health tech companies on digital health initiatives, including those that promote care coordination and drive value-based efficiencies. Specifically, the regulations include several new and modified "safe harbor" arrangements that would allow providers and health IT companies to collaborate on initiatives that would previously have created risks under the Anti-Kickback Statute. Critically, these safe harbors allow parties to exchange health IT technology and other in-kind benefits at less than fair market value, as long as certain requirements are met. Depending on the circumstances, the recipient may be able to receive the benefit for free, or may be required to contribute at least 15% of the total cost. If a given arrangement meets all the criteria for a safe harbor, then the parties are shielded from liability even if they are exchanging "remuneration" within the meaning of the Anti-Kickback Statute. Because violations of the Anti-Kickback Statute can result in substantial civil and criminal penalties, providers often avoid arrangements that do not fit squarely within a safe harbor. For more information regarding the Anti-Kickback and Stark
Reforms, please see our Manatt Insights summary.
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In early November, CMS published a new final rule that enables health home agencies (HHAs) to use telecommunications technology or audio-only services. |
Services provided to patients must be included in the plan of care and not substituted for or considered a home visit for eligibility or payment purposes. |
On October 14, CMS expanded the list of telehealth services Medicare Fee-For-Service will pay for during the PHE. |
CMS added 11 new services to the Medicare telehealth service list, adding to the over 80 additional eligible telehealth services outlined in the May 1 COVID-19 IFC. The new telehealth services include certain neurostimulator analysis and programming services, and cardiac and pulmonary rehabilitation services. |
On October 14, CMS released a Preliminary Medicaid and CHIP Data Snapshot to provide information on telehealth utilization during the PHE. |
This data shows more than 34.5 million services were delivered to Medicaid and CHIP beneficiaries via telehealth between March and June of this year—an increase of 2,600% when compared to the same period in 2019. Additionally, CMS updated its State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth, COVID-19 Version to help providers and other stakeholders understand which policies are temporary or permanent, and to communicate telehealth access and utilization strategies to providers. |
On August 4th, CMS released a proposed Physician Fee Schedule Rule which would make certain Medicare telehealth flexibilities permanent and extend others for the remainder of the year in which the public health emergency (PHE) ends. |
For CY 2021, CMS is proposing several changes to the Medicare telehealth covered services list. First, CMS is proposing to add permanent coverage for a range of services, including group psychotherapy, low-intensity home visits, and psychological and neuropsychological testing, among others. Second, CMS is proposing to add extended temporary coverage for certain services through the end of the calendar year in which the COVID-19 PHE ends, including high intensity home visits, low-intensity emergency department visits, and nursing facility discharge day management, among others. Finally, CMS is indicating which services that have been covered on a temporary basis during the PHE it does not propose to cover on a permanent basis once the PHE ends. This includes a wide range of more than 70 services such as telephonic evaluation and management services, nursing facility visits, specialized therapy services, critical care services, end stage renal disease dialysis-related services, and radiation management services, among others. For a summary of the proposed Physician Fee schedule Rule, please see the August 7 Manatt Insights summary. |
On May 1, CMS released a second IFR with comment period (IFC), "Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program," outlining further flexibilities in Medicare, Medicaid, and health insurance markets as a result of COVID-19. |
For a summary of the second IFR, please see the May 5 Manatt Insights summary. |
On April 17, CMS released Frequently Asked Questions (FAQs) on Medicare Fee-for-Service Billing and highlighted several changes to RHC and FQHC requirements and payments. |
New Payment for Telehealth Services (real-time, audio visual):
Expansion of Virtual Communication Services (telephone, online patient communication):
For more information on Expanded Telehealth Reimbursement for FQHCs and RHCs, see our June 9 Manatt newsletter. |
On April 2, CMS issued an informational bulletin regarding Medicaid coverage of telehealth services to treat substance use disorders (SUDs)—one of many guidance documents required by the October 2018-enacted Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act. |
This guidance provides states options for federal reimbursement for "services and treatment for SUD under Medicaid delivered via telehealth, including assessment, medication-assisted treatment, counseling, medication management, and medication adherence with prescribed medication regimes." For a summary of this bulletin, please see the April 6 Manatt Insights summary. |
On March 30, CMS released an interim final rule (IFR) outlining new flexibilities to preexisting Medicare and Medicaid payment policies in the midst of the COVID-19 public health emergency (also, PHE). |
These provisions include adding over 80 additional eligible telehealth services, giving providers flexibility in waiving copays, expanding the list of eligible types of providers who can deliver telehealth services, introducing new coverage for remote patient monitoring services, reducing frequency limitations on telehealth utilization, and allowing telephonic and secure messaging services to be delivered to both new and established patients. The provisions listed in this rule are effective March 31, with applicability beginning on March 1. For more information on the IFR, see our April 9 Manatt newsletter. |
On March 18, the HHS and the Office for Civil Rights (OCR) issued a public notice stating that OCR will not impose penalties for noncompliance with regulatory requirements under the HIPAA rules "against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency." |
This will allow providers to communicate with patients through telehealth services and remote communications technologies during the COVID-19 national emergency. Providers may use any non-public-facing remote communication product that is available to communicate to patients; these applications can include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype. For more information on our HIPAA summary, see our April 23 Manatt newsletter. |
On March 10, CMS introduced significant new flexibilities for Medicare Advantage (MA) and Part D plans to waive cost-sharing for testing and treatment of COVID-19, including emergency room and telehealth visits during the crisis. |
MA plans are required to:
For more information on Medicare changes, see our March 17 Manatt newsletter. |
Legislative Activity
Bill/Activity | Key Proposed Actions |
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Activity | |
In March 2021, MedPAC issued a report entitled "Medicare Payment Policy." |
The report included a chapter that proposes how Medicare may cover telehealth services for a limited duration of time after the end of the COVID-19 PHE; the commission noted that more time and data are needed prior to recommending permanent coverage and reimbursement changes. Specifically, MedPAC proposes temporarily continuing the following flexibilities for a limited duration of time after the end of the PHE:
After the PHE ends, MedPAC proposes: 1) returning to the fee schedule's facility rate for telehealth services and collecting data on the cost to deliver telehealth services; and, 2) reintroducing cost sharing for telehealth services. In addition, MedPAC suggests implementing the following safeguards to prevent unnecessary spending and fraud:
Notably, the path forward proposed by MedPAC in this report does not ensure long-term permanent coverage for telehealth for all Medicare members regardless of where they are located (e.g., patients in non-rural areas, patients located in their home), or for telehealth services delivered via audio-only modalities. |
On March 5th, the House Energy & Commerce Health Subcommittee held a hearing, The Future of Telehealth: How COVID-19 is Changing the Delivery of Virtual Care to discuss the future of telehealth in Medicare. |
Members of the sub-committee were not aligned on a timeline for adopting permanent telehealth reimbursement policies in Medicare, but generally voiced support for continuing many of the flexibilities that have been implemented during the public health emergency. While acknowledging the value that telehealth has demonstrated during the pandemic, many members continue to express long-standing concerns about the potential for increased fraud and abuse of telehealth services. |
On January 14th, MedPAC hosted a meeting to discuss whether and how to permanently expand telehealth in fee-for-service Medicare. |
The Commissioners largely supported the policy options outlined by MedPAC staff to maintain on a permanent basis some of the temporary policy changes made during the PHE. Several commissioners noted that given the pace of change with respect to telehealth adoption during the COVID-19 pandemic and the lack of concrete evidence to support permanent expansion of certain policies, they would be more comfortable supporting expansion on a more time-limited basis (e.g. 1-2 years) than permanently. In addition, the Commissioners identified several areas that will require continued discussion in order to balance access, cost and quality imperatives. The policy options will be incorporated into MedPAC's upcoming report to Congress expected in March 2021. For more information regarding the MedPAC meeting, please see our Manatt Insights Newsletter. |
On November 9, MedPac issued a report on the expansion of telehealth in Medicare. |
The presentation highlights permanent (post-PHE) policy options that CMS may consider when expanding Medicare telehealth coverage. For more information, please see our Manatt Newsletter. |
Introduced Legislation | |
S. 4965: A bill to amend title XCIII of the Social Security Act to remove in-person requirements under Medicare for mental health services furnished through telehealth and telecommunications technology. Introduced September 27, 2022 |
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H.R. 8976: Protecting Reproductive Freedom Act Introduced September 22, 2022 |
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S. 4747: Investing in Kids' Mental Health Now Act of 2022 Introduced August 2, 2022 |
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HR.R. 8650 / S. 4723: Let Doctors Provide Reproductive Health Care Act Introduced August 2, 2022 |
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H.R. 8588: Fair Care Act of 2022 Introduced July 28, 2022 |
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H.R. 4040: Advancing Telehealth Beyond COVID-19 Act of 2022 Engrossed July 27, 2022 |
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H.R. 8489: Greater Access to Telehealth Act Introduced July 26, 2022 |
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H.R. 8506: To amend title XVIII of the Social Security Act to extend telehealth services for federally qualified health centers and rural health clinics. Introduced July 26, 2022 |
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H.R. 8505: To amend title XVIII of the Social Security Act to permit the use of telehealth for purposes of recertification of eligibility for hospice care. Introduced July 26, 2022 |
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H.R. 8515: To amend title XVIII of the Social Security Act to allow for the furnishing of audio-only telehealth services. Introduced July 26, 2022 |
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H.R. 8493: To amend title XVIII of the Social Security Act to remove geographic requirements and expand originating sites for telehealth services. Introduced July 26, 2022 |
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H.R. 8491:To amend title XVIII of the Social Security Act to expand eligible practitioners to furnish telehealth services. Introduced July 26, 2022 |
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H.R. 8497: To amend title XVIII of the Social Security Act to remove in-person requirements under Medicare for mental health services furnished through telehealth and telecommunications technology. Introduced July 26, 2022 |
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H.R. 8405 / S. 4467: Protecting Access to Medication Abortion Act H.R. 8405 Introduced July 18, 2022 S.4467 Introduced June 23, 2022 |
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H.R. 8296: Women's Health Protection Act of 2022 Engrossed July 15, 2022 |
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H.R.7900: National Defense Authorization Act for Fiscal Year 2023 Engrossed July 14, 2022 |
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S. 2938: Bipartisan Safer Communities Act Passed June 25, 2022 |
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S. 4498: Kids' Mental Health Improvement Act Introduced June 23, 2022 |
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S. 4486: Health Equity and Accountability Act of 2022 Introduced June 23, 2022 |
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H.R. 8169: Rural Telehealth Access Task Force Act Introduced June 22, 2022 |
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H.R. 8180: Undertaking Needed Investments in Therapy, Education, and De-Escalation Act of 2022 Introduced June 22, 2022 |
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H.R. 7878: Kidney Health Connect Act of 2022 Introduced May 24, 2022 |
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H.R.7876: Connecting Rural Telehealth to the Future Act Introduced May 24, 2022 |
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H.R. 7666: Restoring Hope for Mental Health and Well-Being Act of 2022 Introduced May 6, 2022 |
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H.R. 7585: Health Equity and Accountability Act of 2022 Introduced April 26, 2022 |
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H.R. 7573: Telehealth Extension and Evaluation Act Introduced April 26, 2022 |
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S. 4132: Women's Health Protection Act of 2022 Introduced May 4, 2022 (Note: Failed to pass the Senate on May 11, 2022) |
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H.R. 7097: Telehealth Treatment and Technology Act of 2022 Introduced on March 16, 2022 |
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Introduced Feb. 8 2022 |
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Introduced on Feb. 7, 2022 |
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S. 150: Ensuring Parity in MA for Audio-Only Telehealth Act of 2021 Reintroduced Feb. 2, 2021 |
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S. 155: Equal Access to Care Act Reintroduced Feb. 2, 2021 |
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S. 340: Telehealth Response for E-prescribing Addiction Therapy Services (TREATS) Act Reintroduced Feb. 22, 2021 |
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S. 368: Telehealth Modernization Act Reintroduced Feb. 23, 2021 |
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S. 445: Mainstreaming Addiction Treatment Act of 2021 Reintroduced Feb. 25, 2021 |
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S. 620: KEEP Telehealth Options Act of 2021 Reintroduced Mar. 9, 2021 |
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S. 660: Tele-Mental Health Improvement Act Introduced March 10, 2021 |
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S. 801: Connected MOM Act Introduced Mar. 17, 2021 |
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S. 1309: Home Health Emergency Access to Telehealth (HEAT) Act Introduced Apr. 28, 2021 |
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S. 1704/H.R.5981: Telehealth Expansion Act S. 1704 introduced May 19, 2021 H.R. 5981 introduced November 15, 2021 |
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S. 2061: Telemental Healthcare Access Act of 2021 Introduced June 15, 2021 |
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S. 2097: Telehealth Health Savings Account (HSA) Act Introduced June 17, 2021 |
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S. 2110: Increasing Rural Telehealth Access Act of 2021 Introduced June 17, 2021 |
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S. 2111: Audio-Only Telehealth for Emergencies Act Introduced June 17, 2021 |
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S. 2173: Promoting Responsible and Effective Virtual Experiences through Novel Technology to Deliver Improved Access and Better Engagement with Tested and Evidence-based Strategies (PREVENT DIABETES) Act Reintroduced June 22, 2021 |
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S. 2197: Rural and Fronteir Telehealth Expansion Act Introduced June 23, 2021 |
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H.R. 318: Safe Testing at Residence Telehealth Act of 2021 Reintroduced Jan. 13, 2021 |
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H.R. 341: Ensuring Telehealth Expansion Act of 2021 Reintroduced Jan. 15, 2021 |
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H.R. 366: Protecting Access to Post-COVID-19 Telehealth Act of 2021 Reintroduced Jan. 19, 2021 |
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H.R. 596: The Advancing Connectivity During the Coronavirus to Ensure Support for Seniors (ACCESS) Act Reintroduced Jan. 28, 2021 |
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H.R. 708: Temporary Reciprocity to Ensure Access to Treatment Act (TREAT) Reintroduced Jan. 19, 2021 |
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H.R. 726: COVID–19 Testing, Reaching, And Contacting Everyone (TRACE) Act Introduced Feb. 2, 2021 |
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H.R. 937: Tech To Save Moms Act Introduced Feb. 8, 2021 |
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H.R. 1149: Creating Opportunities Now for
Necessary and Effective Care Technologies (CONNECT) for Health Act
of 2021 |
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H.R. 1406: COVID-19 Emergency Telehealth Impact Reporting Act Reintroduced Feb. 26, 2021 |
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H.R. 1397: Telehealth Improvement for Kids' Essential Services (TIKES) Act Reintroduced Feb. 26, 2021 |
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H.R. 2166: Ensuring Parity in MA and PACE for Audio-Only Telehealth Act Bill text not yet available at the time of publication. Introduced Mar. 23, 2021 |
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H.R. 2168: Expanded Telehealth Access Act Bill text not yet available at the time of publication. Introduced Mar. 23, 2021 |
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H.R. 2228: Rural Behavioral Health Access Act Bill text not yet available at the time of
publication. |
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H.R. 2903: CONNECT for Health Act Introduced Apr. 28, 2021 |
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H.R. 3371: Home Health Emergency Access to Telehealth (HEAT) Act Reintroduced May 20, 2021 |
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H.R. 3447: Permanency for Audio-Only Telehealth Act Introduced May 20, 2021 |
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H.R. 3755: Women's Health Protection Act of 2021 Reintroduced June 8, 2021 |
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H.R. 4012: Expanding Access to Mental Health
Services Act |
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H.R. 4040: Advancing Telehealth Beyond COVID-19 Act of 2021 Reintroduced June 22, 2021 |
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H.R. 4036/
S.2112: Enhance Access to Support Essential Behavioral Health
Services (EASE) Act |
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H.R. 4058 S.2061:
Telemental Health Care Access Act of 2021 |
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H.R. 4437: HEALTH Act of 2021 Introduced July 16, 2021 |
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Introduced July 16, 2021 |
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H.R. 4670: Advanced Safe Testing at Residence Telehealth Act (A-START) Introduced July 22, 2021 |
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H.R. 4770: Evaluating Disparities and Outcomes of Telehealth (EDOT) During the COVID-19 Emergency Act of 2021 Introduced July 28, 2021 |
Requires the Secretary of HHS to conduct a study evaluating the effects of changes to telehealth under Medicare and Medicaid during the COVID-19 emergency. |
H.R. 4918: Rural Telehealth Expansion Act Introduced Aug. 3, 2021 |
Amends the Social Security Act to include store-and- forward technologies as telecommunications systems through which telehealth services may be furnished for payment under the Medicare program. |
H.R. 5248: Temporary Responders for Immediate Aid in Grave Emergencies Act of 2021 Introduced Sept. 14, 2021 |
Authorizes the HRSA Provider Bridge Program to:
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H.R. 5425: Protecting Rural Telehealth Access Act Introduced Sept. 29, 2021 |
Allows the use of audio-only technology for certain telehealth services including: E/M services, behavioral health counseling and education services, and other services determined appropriate by the secretary. |
Passed Legislation | |
H.R. 6074: Coronavirus Preparedness and Response Supplemental Appropriations Act |
For more information on Medicare changes, see our March 17 Manatt newsletter. |
H.R. 748: Coronavirus Aid, Relief, and Economic Security (CARES) Act |
For more information on the CARES Act, see our March 27 Manatt newsletter. |
H.R. 133: Consolidated Appropriations Act, 2021 |
For more information on the Consolidated Appropriations Act, see our December 23 Manatt newsletter. |
H.R. 1319: American Rescue Plan Act of 2021 |
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Relevant Telehealth Data and Reports
In November 2022, CTeL published a legislative memo that provides summary of active congressional bills that address Remote Patient Monitoring (RPM) services and devices. Most active RPM bills require government agencies to conduct an evaluation of the devices, and report back to Congress on its use and effectiveness. Other active RPM legislation would provide grants to states of providers to initiate pilot programs and expand RPM services.
In June 2022, FAIR published an article titled "In March 2022, Telehealth Utilization Fell Nationally for Second Straight Month". Telehealth utilization, as measured by telehealth's share of all medical claim lines, fell nationally for the second straight month, according to FAIR Health's Monthly Telehealth Regional Tracker. Researchers suggest the decline in telehealth use was due to an ongoing reduction in the severity and prominence of COVID-19, encouraging more patients to attend in-person visits. The article also states that despite the decline in overall telehealth usage, mental health conditions remain at the top of the list of telehealth diagnoses.
In May 2022, The National Committee for Quality Assurance (NCQA) released a report titled "The Future of Telehealth Roundtable," which highlights strategies that could help close care gaps as telehealth usage continues to grow. In October 2021, NCQA hosted a roundtable discussion to facilitate dialogue on the future of telehealth delivery in a post-pandemic world; the three following strategies were identified to promote equitable access in telehealth delivery:
- Creating telehealth services that cater to personal patient preferences and needs, as some individuals may face struggles due to their primary language and socioeconomic status
- Addressing regulatory barriers to access and changing regulations to allow expanded provider eligibility for licensure
- Leveraging Telehealth and Digital Technologies to Promote Equitable Care Delivery
The report suggests that as telehealth becomes the new
"normal", it is important to prevent inequitable gaps in
telehealth delivery.
In May 2022, JAMA Pediatrics published a research letter titled,
"Association of Race and Socioeconomic Disadvantage
With Missed Telemedicine Visits for Pediatric Patients During the
COVID-19 Pandemic." The letter highlights how pediatric
patients are more likely to miss telehealth visits if they are
low-income. Specifically, a higher probability of economic
disadvantage was associated with a greater likelihood of missing a
telehealth visit as compared to an in-person visit across racial
groups. Additionally, telehealth visits were associated with lower
no-show rates for future clinical appointments, but only for those
with lower economic disadvantage.
In May 2022, Health Affairs published a study titled, "Medicare Beneficiaries In Disadvantaged Neighborhoods Increased Telemedicine Use During The COVID-19 Pandemic." The study found that Medicare beneficiaries living in disadvantaged areas had the greatest odds of expanded telehealth utilization as a result of emergency federal telemedicine coverage expansions during the COVID-19 pandemic. However, odds of increased telehealth access dropped as age increased.
In May 2022, Harvard Business Review released an article titled "The Telehealth Era Is Just Beginning," which explored the current landscape and evidence around telehealth, and discussed future trends in telehealth utilization and policy coming out of the COVID-19 pandemic. Using internal data from Kaiser Permanente and Intermountain Healthcare, combined with National Committee for Quality Assurance outcomes data and health plan member satisfaction surveys, the authors outline five opportunities that broader telehealth utilization could provide:
- A reduction in expensive, unnecessary ER visits
- An improvement in timeliness and efficiency of specialty care
- Access to the best doctors
- A reversal of America's chronic-disease crisis
- Mitigation of health care disparities
The report also suggested that further integration among care team members and adoption of capitated payment models may expedite the implementation of telehealth.
RAND Corporation released a report titled "Experiences of Health Centers in Implementing Telehealth Visits for Underserved Patients During the COVID-19 Pandemic", which evaluated the progress of FQHCs that participated in the Connected Care Acceleration (CCA) initiative by investigating changes in telehealth utilization and health center staff experiences with implementation. The study found that although overall visit volumes remained about the same from the pre-pandemic to the pandemic study periods, the share of audio-only and video visits dramatically increased during the pandemic, and audio-only visits were the leading modality for primary and behavioral health. The study recommends continued study of telehealth trends, particularly regarding equitable access to telehealth.
In March 2022, the American Medical Association released their 2021 Telehealth Survey Report, which aimed to gather insights on the experiences of current and expected future use to inform ongoing telehealth research and advocacy, resource development, and continued support for physicians, practices, and health systems. Data was collected from individuals, state and specialty medical organizations, and members of the American Medical Association Telehealth Immersion Program. The survey indicated that 85% of physicians currently use telehealth, and over 80% of patients said that they receive better access to care since using telehealth. In addition, 54.2% of respondents indicated that telehealth has improved the satisfaction of their work, and 44% said that telehealth has lowered costs.
In March 2022, GAO published a report titled "CMS Should Assess Effect of Increased Telehealth Use on Beneficiaries' Quality of Care", which examined the use of telehealth among Medicaid beneficiaries before and during the COVID-19 pandemic across six select states: Arizona, California, Maine, Mississippi, Missouri, Tennessee. The report also explored the states' experiences with telehealth during the pandemic, future plans for post-PHE telehealth coverage, and CMS' oversight of quality of care for services delivered via telehealth. GAO found that five of the selected states delivered 32.5 million services via telehealth to approximately 4.9 million beneficiaries between March 2020 and February 2021, up from 2.1 million services delivered to about 455,000 beneficiaries during the same time period in the previous year. Notably, the report highlighted the need for improved data collection and analysis related to the quality of care delivered via telehealth. Based on the results of the study, GAO issued two recommendations to CMS: (1) collect and analyze information about the effect delivering services via telehealth has on the quality of care Medicaid beneficiaries receive, and (2) determine any next steps based on the results of the analysis.
In March 2022, the HHS-OIG released a data brief titled "Telehealth Was Critical for Providing Services to Medicare Beneficiaries During the First Year of the COVID-19 Pandemic," which examined trends in telehealth utilization among Medicare fee-for-service and Medicare Advantage beneficiaries from March 2020 to February 2021. The data brief indicated that more than 40% of Medicare beneficiaries utilized telehealth during the first year of the pandemic, with use remaining high through early 2021. Beneficiaries used 88 times more telehealth services during the first year of the pandemic as compared to the prior year.
In March 2022, the American Medical Association (AMA) released a physician survey examining experiences with and perceptions of telehealth. Of the 2,232 provider respondents, nearly 85% indicated they currently use telehealth to deliver care to patients, while 70% indicated they plan to continue offering telehealth services. Moreover, 60% of providers surveyed felt telehealth enabled them to provide high quality care, while 80% of respondents indicated patients received better access to care since using telehealth.
In February 2022, the American Medical Association (AMA), in collaboration with Manatt Health, published a report titled "Accelerating and Enhancing Behavioral Health Integration Through Digitally Enabled Care," which used findings from a diverse working group to highlight solutions that industry stakeholders can apply to address gaps hindering the equitable and sustainable adoption of digitally-enabled behavioral health integration (BHI). Solutions included: increasing BHI training for primary care and behavioral health providers through the incorporation of digitally enabled BHI into standard curricula, encouraging the incorporation of telehealth into BHI by implementing payment parity for behavioral health services delivered via video or audio-only modalities, and passing legislation to remove originating site and geographic restrictions for all telehealth services in Medicare that limit access to care.
In February 2022, Doximity, a provider networking and digital health service, published the second edition of its "State of Telemedicine Report," which highlighted findings in patient and provider perceptions of telehealth based on surveys conducted between January 2020 and June 2021. Patients overall showed growing trust in telehealth as a mechanism for high-quality care, with 55% reporting that they felt telemedicine provided equal or greater quality of care than in-person visits in 2021, compared to 40% in 2020. In addition, approximately two thirds of physicians indicated that using telemedicine allowed them to build or preserve trust with their patients.
In February 2022, The U.S. Government Accountability Office (GAO) released a report titled, "Defense Health Care: DOD Expanded Telehealth for Mental Health Care during the COVID-19 Pandemic," which focused on telehealth use in the military. Among active duty servicemembers, pre-pandemic telehealth visits made up 15% of mental health care visits, compared to 33% in April 2021. Department of Defense (DOD) officials highlighted the value of telehealth and its ability to improve access and continuity of care. In addition, officials suggested that telehealth may reduce the stigma of seeking mental health treatment by allowing servicemembers to receive care more privately without the risk of being seen in military treatment facilities.
In February 2022, the HHS Office of the Assistant Secretary for Planning and Evaluation released an issue brief titled "National Survey Trends in Telehealth Use in 2021: Disparities in Utilization and Audio vs. Video Services," which compared differences in telehealth access for audio-only and video visits between April and October 2021. While overall telehealth utilization was similar across demographic groups, except among the uninsured, there were significant differences in video telehealth use. Rates of video telehealth use were lowest among Latino, Asian and Black individuals, those without a high school degree and adults ages 65 and older.
In October 2021, the HHS-OIG released a data snapshot report titled "Most Medicare beneficiaries received telehealth services only from providers with whom they had an established relationship," which evaluated the relationship between providers and Medicare patients utilizing telehealth between March and December 2020. Notably, the data snapshot found that 84% of Medicare beneficiaries received telehealth services only from providers with whom they had an established relationship.
In October 2021, JAMA published an study titled "Changes in Virtual and In-Person Health Care Utilization in a Large Health System During the COVID-19 Pandemic," which sought to assess the association between the growth of virtual care and health care utilization in an integrated delivery network. The study found that while COVID-19 caused in-person visits to decline and virtual services to increase, there was no significant change in the overall volume of healthcare utilization, suggesting that virtual care was substitutive, rather than additive in the ambulatory care setting.
In September 2021, the HHS-OIG released two telehealth reports "States Reported Multiple Challenges With Using Telehealth To Provide Behavioral Health Services to Medicaid Enrollees" and "Opportunities Exist To Strengthen Evaluation and Oversight of Telehealth for Behavioral Health in Medicaid" based on surveys conducted in early 2020. The surveys focused around telemental health delivery though managed care organizations.
In July 2021, AAMC in in partnership with Manatt Health published "Sustaining Telehealth Success: Integration Imperatives and Best Practices for Advancing Telehealth in Academic Health Systems", conducting extensive interviews with many leading telehealth AMCs across the country (Ochsner, VA, Kaiser, MUSC, UMMC, Intermountain, Jefferson, etc.) and synthesizing best practices through this report.
In July 2021, The National Association of Community Health Centers (NACHC) published "Telehealth During COVID-19 Ensured Patients Were Not Left Behind," which explores how health centers have utilized telehealth and the implications for health center patients should the PHE flexibilities not be extended.
In June 2021, the Lucile Packard foundation published "COVID-19 Policy Flexibilities Affecting
Children and Youth with Special Health Care Needs" to
identify key flexibilities enacted during the PHE related to
children and youth with special health care needs (CYSHCN) and
summarize stakeholders' perspectives about the impact of policy
flexibilities on CYSHCN and their families and providers.
In June 2021, the Commonwealth Fund published "States' Actions to Expand Telemedicine Access During COVID-19 and Future Policy Considerations," which examined state actions to expand individual and group health insurance coverage of telemedicine between March 2020 and March 2021 in order to better understand the changing regulatory approach to telemedicine in response to COVID-19.. Notably, the report found that twenty-two states "changed laws or policies during the pandemic to require more robust insurance coverage of telemedicine." Three policy flexibilities that states focused on included: requiring coverage of audio-only services; requiring payment parity between in-person and telemedicine services; and, waiving cost sharing for telemedicine or requiring cost sharing equal to in-person care.
In June 2021, the Substance Abuse and Mental Health and Services Administration (SAMHSA) released "Telehealth for the Treatment of Serious Mental Illness and Substance Use Disorders," a guide supporting the implementation of telehealth across diverse mental health and substance use disorder treatment settings. The guide examines the current telehealth landscape and includes guidance and resources for evaluating and implementing best practices that will continue to assist treatment providers and organizations seeking to increase access to mental health services via telehealth.
In May 2021, the National Academy for State Health Policy (NASHP) released "States Expand Medicaid Reimbursement of School-Based Telehealth Services" exploring how states are increasing Medicaid coverage of school-based telehealth services during COVID-19, determining which services can effectively be delivered through telehealth, and supporting equitable access to telehealth services for students.
In May 2021, the Kaiser Family Foundation published "Medicare and Telehealth: Coverage and Use During the COVID-19 Pandemic and Options for the Future" analyzing Medicare beneficiaries' utilization of telehealth using CMS survey data between summer and fall of 2020.
In May 2021, the American Medical Association in partnership with Manatt Health published "Return on Health: Moving Beyond Dollars and Cents in Realizing the Value of Virtual Care" to articulate the value of digitally enabled care that accounts for ways in which a wide range of virtual care programs can increase the overall health and generate positive impact for patients, clinicians, payors and society.
In March 2021, the Journal of the American Medical Association (JAMA) published "In-Person and Telehealth Ambulatory Contacts and Costs in a Large US Insured Cohort Before and During the COVID-19 Pandemic," highlighting existing disparities related to the digital divide.
FAIR Health publishes a Monthly Telehealth Regional Tracker to track how telehealth is evolving comparing telehealth: volume of claim lines, urban versus rural usage, the top five procedure codes, and the top five diagnoses.
In February 2021, the Commonwealth Fund published "The Impact of COVID-19 on Outpatient Visits in 2020: Visits Remained Stable, Despite a Late Surge in Cases" tracking trends in outpatient visit volume through the end of 2020 hoping to track what the clinical impacts of the pandemic are and how accessible has outpatient care been, if there are new policies encouraging greater use of telemedicine, and what has been the financial impact of the pandemic on health care providers.
In February 2021, the California Health Care Foundation in partnership with Manatt Health published "Technology Innovation in Medicaid:What to Expect in the Next Decade," a survey of 200 health care thought leaders in order to learn where health technology in the safety net is expected to go over the next decade.
In February 2021, Health Affairs published "Variation In Telemedicine Use And Outpatient Care During The COVID-19 Pandemic In The United States", which examined outpatient and telemedicine visits across different patient demographics, specialties, and conditions between January and June 2020. The study found that 30.1% of all visits were provided via telemedicine, and usage was lower in areas with higher rates of poverty.
On December 29, JAMA published an article evaluating whether inequities are present in telemedicine use during the COVID-19 pandemic. The study found that older patients, Asian patients, and non–English-speaking patients had lower rates of telemedicine use, and older patients, female patients, Black, Latinx, and poorer patients had less video use. The authors conclude that there are inequities that exist and the system must be intentionally designed to mitigate inequity.
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