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 (