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Inside Health Policy: CMS Says Statute Limits Telehealth As Push To Keep Expansion Grows

June 5, 2020 5:03 pm

June 4, 2020 1:05AM ET

(Inside Health Policy)

CMS tells Inside Health Policy that extending many of the newly waived restrictions on telehealth beyond the pandemic would require Congress to step in, despite the president’s executive order aimed at making some COVID-19 regulatory waivers permanent. Stakeholders are pressing lawmakers and CMS to extend the COVID-19 telehealth waivers, and some lawmakers have expressed support for extending regulatory waivers and easing state licensing restrictions that affect telehealth across state lines.

The agency has issued numerous waivers and multiple rules to ease regulatory burdens on the health sector during the COVID-19 pandemic, including many aimed at increasing the use of telehealth in Medicare. The president’s May 19 executive order asks federal agencies to look at the waivers they have made and determine “which, if any, would promote economic recovery if made permanent.” The order directs agencies to send those reports to the White House Office of Management and Budget, the Assistant to the President for Domestic Policy, and the Assistant to the President for Economic Policy.

However, the president acknowledged that not all waivers could be extended beyond the public health emergency. When asked whether the executive order would make it easier for CMS to extend telehealth waivers beyond the pandemic, CMS told IHP “many of the requirements that govern Medicare Telehealth services are statutory in nature and could only be revised through a change to the statute.” The agency added that executive orders don’t revise statutory requirements but may provide direction for regulations that implement statute.

“CMS has already shown its commitment to expanding access to telehealth within our authority and is continuing to think carefully about what recent changes should be continued after the public health emergency is lifted. We will be assessing this fully after we get past the pandemic, with a focus on making sure that we are leveraging the latest technology and modernizing the Medicare program to provide high-quality care,” a spokesperson says.

CMS Administrator Seema Verma previously indicated CMS is looking at what regulatory changes could continue after the end of the health emergency and said increased telehealth has been helpful for beneficiaries.

A McDermott Plus Consulting analysis says the ways to make telehealth changes in Medicare permanent “are neither simple nor clear.” Some changes that CMS has instituted during the pandemic, like an expanded list of providers that can be paid by Medicare for telehealth services and paying providers a facility fee when beneficiaries access telehealth from their homes, would require Congress to step in. But the agency could expand what services qualify for telehealth payment to match what services have been covered during the pandemic.

The Center for Connected Health Policy also says CMS could keep a larger list of telehealth-eligible services after the pandemic. The group says CMS has some flexibility on what could count as eligible originating sites, based on how the agency defines a rural area, as well.

“CMS does have it within their powers to have a definition that would geographically encompass more locations than what was eligible pre-COVID-19 by defining ‘rural’ more broadly. There is also precedent for CMS taking such action as it was redefined in 2014,” an analysis from the center’s executive director, Mei Kwong, says.

Stakeholders are asking both CMS and lawmakers to retain access to telehealth after the emergency. The College of Healthcare Information Management Executives urged CMS to not abruptly remove access to telehealth after the pandemic and for the agency to make waivers permanent.

“Continuing the availability of telehealth for both patients and providers will also help smooth the glide path as the American medical system transitions from COVID-19 trauma care back to standard operations, a process many continue to believe will take two years or longer,” CHIME says in comments on CMS’ first interim final rule implementing COVID-19 regulatory waivers.

The American Medical Group Association says the changes CMS has implemented to expand telehealth during the COVID-19 emergency have fundamentally shifted how patients interact with their providers and there is no going back.

“Moving forward, the regulatory framework governing telehealth needs to acknowledge this new reality. It will be neither realistic to expect patients to return the previous model nor an appropriate use of resources for providers to attempt to reinstitute previous care practices. Simply stated: the train has left the station,” AMGA says in comments on the rule.

The Mental Health Liaison Group is asking CMS for a one-year transition period after the pandemic is over to help plan for how to extend telehealth flexibilities. The Association of American Medical Colleges also separately called for a year-long transition to give Congress and CMS a chance to work through how to make greater access to telehealth permanent.

Senate Finance Committee Chair Chuck Grassley (R-IA) told Decorah News he is supportive of telehealth “and is hoping that some of the regulations being used now during the coronavirus epidemic can be continued after the epidemic ends.”

At press time, Grassley’s office had not said which regulations he was referring to, and whether he has any plans to extend those regulation via legislation. The House Energy & Commerce Committee had also not said whether they planned to take up the issue.

Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) on a recent Heritage Foundation webinar raised concerns with state licensing issues that could affect providers’ abilities to work across state lines via telehealth but Cruz indicated state licensing concerns also go beyond telehealth. Lee said telehealth is an idea for which the time has come. — Michelle M. Stein (mstein@iwpnews.com)

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BGOV: Telehealth Pay Gaps Loom After Virus When State Orders Expire

June 5, 2020 4:49 pm

  • Several states used emergency orders to boost pay for telehealth
  • Reopening doesn’t mean end of telehealth, attorneys say

By Ayanna Alexander | June 4, 2020 5:31AM ET

Virtual doctor visits won’t go away after the pandemic as states like Illinois and Arkansas try to ensure telehealth remains a viable alternative.

Chatting with physicians online surged during Covid-19 via video-conferencing apps such as Google Meet, Zoom, Skype, and Apple FaceTime to keep patients and doctors from potentially exposing themselves and others to the coronavirus.

Major health-care commercial insurers like Aetna, Cigna, Blue Cross Blue Shield, Humana, and United Healthcare typically cover telehealth, but these virtual services don’t always pay providers at the same rate as in-person care.

While approximately 60% of states like California and Virginia already have laws on the books leveling payments for virtual and in-person treatment, many others rushed to fill the gap with emergency orders during the outbreak. Demand for telehealth shows no signs of slowing as states slowly start reopening, but those temporary payment measures will expire with the national emergency unless states take additional steps.

“With the Covid-19 pandemic, we’ve seen an overnight switch from in-person to telehealth services, and I think this is a dress rehearsal for telehealth as a mainstream modality of providing health care,” Jake Harper, a health-care attorney at Morgan, Lewis & Bockius LLP in Washington who focuses on telehealth and medical reimbursement issues.

“These forces are going to push on insurers and legislators to start reimbursing telehealth services or revising telehealth legislation in a more meaningful way,” Harper said.

Financial Incentive Needed

Without state action, doctors will have more incentives to in-person treatment that pays better, according to Carrie Nixon, a managing partner at the Nixon Law Group LLC.

“This means that either both state legislators and policymakers need to see the value in telehealth for improving patient outcomes and lowering the overall cost of care and legislate permanent changes accordingly, or commercial payers need to come to the same conclusion on their own,” she said.

Prior to the coronavirus, doctors and hospitals had a hard time getting reimbursed when providing virtual treatment unless their patients live in rural areas. But federal regulators and insurers allowed Medicare, Medicaid, and major health plans to pay telehealth costs for office, hospital, and other visits.

This could spur states to follow suit, according to Lisa Mazur, a partner at McDermott Will & Emery in Chicago and president of the Partnership for Connected Illinois. The expiring executive orders give those states another chance to address the pay gap between in-person and virtual doctor visits, she said.

State Moves

The boom in virtual communication from Covid-19 forced states to swiftly change their positions on how doctors get paid for performing telehealth services.

Arkansas, for example, requires equal payment for telehealth services during the public health emergency, according to Amy Webb, a spokeswoman for the Arkansas Department of Human Services.

“We are reviewing best practices to determine longer-term plans and approaches to this issue,” Webb said.

Illinois was another state with a change of heart.

Before the pandemic, Illinois had the “if, then” law, which means if a health plan covers telehealth services, then it won’t place certain barriers like higher deductibles on those services, Mazur said.

Gov. J.B. Pritzker issued an executive order in March requiring insurers to reimburse telehealth services at the same rate as in-person office visits. Illinois’ House passed a bill May 23 that would have extended this order until the end of the year, but the provision didn’t come up for a Senate vote before lawmakers adjourned.

The Illinois Telehealth Initiative, a Partnership for Connected Illinois project, will be studying telehealth’s benefits as advocates lobby lawmakers on its benefits.

“We’re doing a study with a Harvard-trained population health specialist on collecting the evidence on telehealth effectiveness during the pandemic,” Nancy L. Kaszak, a former state House representative and director of the initiative, said.

Although telehealth payment parity is a state issue, there are ways that federal regulators can help. The Centers for Medicare & Medicaid Services, for example, has previously said it’s considering what recent telehealth changes to keep once the public health emergency ends.

“Since payment parity is one of the keys to increased adoption of telehealth, I would expect to see more telehealth guidance and initiatives on both the state and federal level as both state and federal governments look for ways to encourage the increased use of telehealth,” Ryan Blaney, a health-care partner at Proskauer Rose LLP in Washington, said.

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