July 20, 2020

Predictions for Post-Pandemic Telehealth

Holland & Knight Healthcare Blog
Miranda A. Franco
Healthcare Blog

Before the pandemic, telehealth coverage was limited in scope. However, the Centers for Medicare & Medicaid Services (CMS) recently expanded coverage through its regulatory authority and waivers to encourage broad adoption of telehealth for the duration of the public health emergency. Accordingly, over the last few months, we have seen an exponential increase in telehealth. Before the public health emergency, according to CMS, approximately 13,000 beneficiaries in fee-for-service (FFS) Medicare received telemedicine in a week. In the last week of April, nearly 1.7 million beneficiaries received telehealth services.

Moving forward, CMS can make a number of these changes permanent through rulemaking. We anticipate that the annual Medicare Physician Fee Schedule (MPFS) and Outpatient Prospective Payment System (OPPS) rules will be released imminently. The 2021 payment proposed rules may clarify whether CMS will continue to seek to accommodate providers by how aggressively they propose to implement new policies and if they extend or make permanent temporary flexibilities implemented through COVID-19 waivers. An indication that CMS may address telehealth in the rule is CMS' proposal in the CY 2021 Home Health Proposed Rule to make temporary COVID-19 telehealth flexibilities for home health services permanent. However, it should be noted that under the proposed rule, telehealth interactions wouldn't be considered a "visit" in terms of patient eligibility or payment—meaning that providers wouldn't be reimbursed for their services.

CMS Administrator Seema Verma said that "telehealth expansions that the agency allowed in light of the new coronavirus epidemic should continue after the epidemic ends, and officials are looking at ways to keep the expansions intact without action from Congress." Yet, congressional action is also needed, as CMS is limited in its authority to address originating site, distant site and use of telehealth modalities. As such, members of Congress have introduced a flurry of new telehealth-related legislation, each of which takes different approaches to either expand or study telehealth policies during the COVID-19 emergency period or addresses permanent changes in telehealth policies that would apply once the emergency ends.

Most recently, the House Congressional Telehealth Caucus introduced the Protecting Access to Post-COVID-19 Telehealth Act of 2020. The proposed bill would provide many of the regulatory flexibilities that healthcare provider groups have been pushing for during the pandemic, such as removing geographic restrictions on where a patient must be located to utilize telehealth services and enabling telehealth services to be provided to patients in their homes. The legislation also ensures federally qualified health centers and rural health centers can furnish telehealth services.

Despite the growing support from Congress and CMS, several gaps remain in ensuring access to telemedicine, including addressing potential fraud, licensure issues and payment parity. Nonetheless, stakeholders should expect the telehealth landscape to proliferate. While progress was being made before the coronavirus outbreak to adopt telehealth, the pandemic has catapulted the need to lift boundaries on telehealth services to accelerate its transformational capabilities for patients and providers.

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