Telehealth Policy Picture Improving — But Slowly

Oct. 5, 2015
For almost 20 years, telehealth advocates have faced the Sisyphean task of trying to get the U.S. Congress to expand Medicare coverage for telehealth, while continuing to hammer away at the confusing landscape of state laws and regulations.

Families in Delaware struggling with Parkinson’s disease often have to travel to Baltimore or Philadelphia for care because there are no Parkinson’s specialists in the state. Many of those patients have worked with Ray Dorsey, M.D., of Johns Hopkins University in Baltimore, whose research focuses on the use of telemedicine for neurological conditions. 

But those families also got involved with the nonprofit Delaware Telehealth Coalition and this year successfully petitioned the state legislature to pass a bill to require commercial insurers to cover telehealth visits. “There may have been policies that covered telemedicine services in private insurance, but we couldn’t find them,” says Carolyn Morris, a member of the coalition and director of telehealth planning and development in the Delaware Department of Health and Social Services. “This is going to benefit many people who have not been able to access certain services using telehealth in the past because there were no provisions in Delaware for insurance coverage for services using technology.”

State Policies Not Comprehensive

For almost 20 years, telehealth advocates have faced the Sisyphean task of trying to get the U.S. Congress to expand Medicare coverage for telehealth beyond traditional rural settings. Meanwhile, they continue to hammer away at the uneven and confusing landscape of state laws and regulations. For instance, the rules regarding Medicaid coverage of telehealth are different in each state.

“One of the biggest frustrations for healthcare providers, administrators and CIOs is that the technology is so far ahead of the policy,” says Danielle Louder, program manager for the Northeast Telemedicine Resource Center, which is funded by the Health Resources and Services Administration (HRSA) Office for the Advancement of Telehealth to provide technical assistance, education and other resources. Although Louder wouldn’t describe the policy pace at the state level as rapid, there has been an uptick recently. “We had 80 bills introduced about telehealth just in our eight-state region this year,” she says.

Nate Lacktman, a healthcare attorney and partner with Foley & Lardner LLP, says state telehealth coalitions such as the one in Delaware are having an impact as more states grapple with issues of commercial payer statutes. “It is important to fund telehealth through the private sector,” he says. “Relying solely on Medicaid and Medicare changes is not the way to go. The private market will help drive adoption. The provider community is beginning to have a more focused voice on this issue. People are seeing the value and embracing it.”

Twenty-eight states now have laws that require insurance parity for services delivered via live video, several of which were passed in their most recent legislative session. “State legislatures are recognizing that parity laws are the easiest policy issue to deal with from their vantage point to recognize that telehealth is just a way to deliver care and to ensure that there are no discriminatory barriers that prevent telemedicine providers from getting reimbursed for services that are already covered under healthcare plans,” says Latoya Thomas, director of the State Policy Resource Center at the American Telemedicine Association (ATA).

Yet Mario Gutierrez, executive director of the HRSA-funded Center for Connected Health Policy (CCHP), which tracks telehealth policy nationwide, says that with the exception of California, which passed comprehensive legislation in 2011, efforts to reform telehealth policies have been piecemeal in every state. “States are taking a cautious approach,” he says. “When we meet with legislators, we are often surprised by how little information they have about telehealth.”

Mario Gutierrez

Although many states are starting to address how private payers treat telehealth, the devil is in the details of the language in each state, he adds.  Gutierrez also questions whether it makes sense to require equal payment for telehealth services that are designed to create efficiencies and reduce costs.

“To create a requirement that the insurer pay the same for remote monitoring, where you are creating efficiencies, is counterproductive to the intent of the benefits of telehealth,” he says. “I don’t think the people who are developing those policies have really thought it through. It makes sense that a live videoconference should be paid the same. But where remote patient monitoring could save money, if you require they pay the same, what’s the point?”

State Medicaid programs have been much better at identifying telemedicine as a worthwhile tool for providers to use to help underserved communities access healthcare services, says Gary Capistrant, the ATA’s chief policy officer, “but what we have seen is disparities in the way that Medicaid covers services. States implement arbitrary barriers like a distance requirement or not allowing statewide coverage or limiting the types of technology that can be used.”

Gary Capistrant

California, Gutierrez says, now has a framework for both public and private systems to use telehealth in a much broader way. It is still lagging in terms of reimbursement for remote patient monitoring, but with the entire Medicaid program now under managed care contracts and a greater push toward value-based care, telehealth is becoming more attractive, he says. “In a fee-for-service world, it is always going to be seen as a cost, not as a cost saver.”

Crossing State Lines

One contentious issue has been licensing providers across state lines. Clinicians who want to treat patients in another state have had to apply for and pay for licenses in those states, a costly and time-consuming process. Some state boards have sought to prevent or limit the expansion of telehealth, citing patient safety concerns.

Every medical board has several interests, Lacktman says. One is protecting the safety and welfare of patients; another is responding to the needs of its constituency: licensed doctors in the state. In a vast majority of the boards, you see a real drive to enact new policies that will allow for innovations and new developments in technology, he says. “They are trying to get their policies flexible enough because they know they cannot keep changing policy as fast as the technology and delivery changes.” (The Texas Medical Board is locked in a legal battle with telehealth provider Teladoc. The board claims it is protecting patient safety, while the company says it is violating federal antitrust laws.)

ATA’s Capistrant gives another example of the type of tension that exists. In Tennessee last year, the legislature passed a bill requiring telehealth parity for private insurance, Medicaid and state employee benefits, he reports. A month later, the medical board came out with regulations that would have put several barriers on telehealth, basically squelching what the legislature had done. “This year the legislature passed a bill that said the medical board could not hold telehealth to a higher standard than other care, and the Tennessee Medical Board has done a 180 since then,” he adds.

To try to deal with the license portability issue, the Federation of State Medical Boards (FSMB) has created the Interstate Medical Licensure Compact, an option under which qualified physicians seeking to practice in multiple states would be eligible for expedited licensure in all states participating in the compact. So far, 11 states have enacted legislation to participate.

Although it is too early to say whether it will have a positive impact, some observers believe the compact idea does not go far enough. For instance, CCHP’s Gutierrez sees the compact as a way to mollify the pressure that has been building around state medical boards to appear like they are doing something, “but I don’t think it is going to have much effect,” he says, adding that he would like the federal government to create nationwide telehealth licenses for clinicians working for federally funded programs such as federally qualified health centers or VA hospitals. “Why not have such a license when we have such a shortage of specialists and such a poor distribution of services?”

Joel White, executive director of the Health IT Now Coalition, called the interstate licensure compact a misguided progress. “The compact says you can get a duplicate license faster, but it doesn’t change the fact that you still need a duplicate license. Instead of eliminating this barrier, it just says you can do it quicker. The cost issue still remains. You still have to get them, not for safety reasons, but just because state medical boards want to line their pockets and retain control. Every doctor has to take nationwide competency exams. This is about protecting a guild system started in the 1600s and 1700s.”

Working Toward Change at the Federal Level

If progress at the state level is uneven at best, the federal landscape isn’t much better. The fact that Medicare coverage for telehealth only applies to rural patients is still a huge barrier, says the Northeast Telemedicine Resource Center’s Louder. “We talk to people in urban areas who really want to use telehealth to increase access,” she says, “because we know that socioeconomic status and transportation can be daunting in urban areas. But because the policy has been set around rural areas, it is a real problem. We don’t have a big research base about its use in urban areas, and that is what drives practice.”

The Center for Medicare & Medicaid Services (CMS) had been considering eliminating a number of barriers to telehealth in its Medicare Shared Savings Program, but when the final rule was announced this year, none of the proposed changes made it into the final rule.

CMS’ Next Generation ACO Model waives Medicare’s originating site and geographic requirements for participating ACOs, but CCHP’s Gutierrez notes that there will be only 20 Next Generation models funded around the country for a two-year period, “so it is going to be slow on the uptake,” he says. “If we are talking about value-based care, we should be moving quickly into allowing these ACOs to utilize technology to its fullest.”

The ATA is trying to ensure that payment innovations such as ACOs are able to fully use telehealth as well as supporting stand-alone legislation regarding more narrow approaches. “There’s a bill to cover remote stroke diagnosis,” Capistrant says. “The American Heart Association figures it could save over a billion dollars, but we can’t get Congress to ask the CBO [Congressional Budget Office] to score it. And so it just doesn’t happen. But we continue to develop congressional support, and the experience of states is helpful to move it forward.”

Health IT Now’s Joel White says advocates are still trying to break the code to get Medicare to cover more telemedicine services and reimburse for it, and the biggest holdup has been the CBO. “They have always said if you expand the number of covered services, and reimburse at the same rate, total costs will go up.”

Each congressional session, legislation is introduced to expand Medicare’s coverage of telehealth. This year, the TELE-MED Act (H.R. 3018 and S. 1778) was introduced with bi-partisan support in the U.S. House of Representatives by Reps. Devin Nunes (R-CA-22) and Frank Pallone (D-NJ-6) with 16 other co-sponsors and in the U.S. Senate by Sens. Mazie K. Hirono (D-HI) and Joni Ernst (R-IA).

Many research studies show that telehealth can be a powerful tool to reduce overall costs, especially over time as it decreases the likelihood that patients will have untreated chronic conditions, Lacktman says. “But those are long-term savings. So if there is an initial uptick in the Medicare budget, that is an important fiscal consideration for Congress to think about.” He says the “doc-fix” bill passed this year requires the Government Accountability Office to prepare two reports by 2017 on telehealth cost savings and cost projections in Medicare. “Those will be important studies Congress can use for financial cost projections before implementing policy changes,” he adds.

White says advocates have been working for a long time to get the CBO to change its view on telemedicine. “I think a lot of people have been upset that CBO hasn’t more quickly changed its view of telemedicine. I am not surprised. We have to change the system based on the rules of the road. CBO has outlined a tough set of rules of the road. But they are manageable and we are working within those rules to expand telehealth to more Medicare beneficiaries, but it is just going to be a process, and we have to keep plodding along.”

Of course, all of these policy and reimbursement uncertainties and disparities make it difficult for telehealth programs to integrate themselves more fully into health system operations. During a July Health IT Summit panel session in Denver, Samantha Lippolis, telehealth manager for Centura Health, said that a traditional challenge for those working in telehealth has been that it has evolved slowly with pilot projects based on grant money. “And so it’s very difficult for leadership to understand that this is just one more tool to deliver healthcare. So just as organizations have developed strategies around ambulatory care and so on, we need to integrate this into everything we do, so that a physician’s normal daily practice is, patient #1 is in room 5; patient #2 is on my video screen; and patient #3 is in room 6,” she says. “And if you provide a half-day a month endocrinology clinic, how is that really improving access? You need to think about how you provide telehealth as part of a [normalized] full range of healthcare services.”

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