Payment Policy Expert: Peering into the Future on Telehealth Reimbursement Is Complicated

Aug. 18, 2021
Liz Westbrook, an attorney and senior advisor in the Federal Government Relations Practice at Buchanan Ingersoll & Rooney, shares insights on the complexities involved in the current landscape around telehealth reimbursement

What will happen if the payment and regulatory changes—relaxations initiated under the public health emergency by the Centers for Medicare & Medicaid Services (CMS) in March 2020, are not maintained, once the public health emergency is declared over at some point in the future? Representatives and advocates for the telehealth sector in U.S. healthcare have been lobbying members of Congress on all the issues related to payment, scope of practice, originating site of care, and other elements in how telehealth is paid for and who is paid; but the issue remains deeply unresolved, and healthcare providers are not universally aligned on what should happen once the public health emergency is declared ended.

As the Chicago- and Washington, D.C.-based American Hospital Association (AHA) noted in a whitepaper published immediately after the CMS regulatory changes took place in March 2020, a number of changes were made at that time.

“Payment for Medicare Telehealth Services. CMS granted an expanded Section 1135 waiver, under which Medicare will pay for office, hospital, and other visits furnished via telehealth across all areas of the country and in all settings, including in patients’ homes, starting March 6, 2020 and for the duration of the COVID-19 public health emergency. This operationalizes the waiver of the originating and geographic site restrictions on telehealth services that are codified in Section 1834(m) of the Social Security Act (the Act). Medicare considers these telehealth services the same as in-person visits and will pay for them at the same rate as regular, in-person visits.

Further, the paper noted, “Telehealth flexibilities include:

> Waivers of originating and geographic site restrictions on Medicare telehealth services, permitting the delivery of these services in all areas of the country and all locations, including patients’ homes.

>   The ability of providers to use expanded telehealth authority for new and established patients for diagnosis and treatment of COVID19, as well as for conditions unrelated to the pandemic.

>   Permission for providers to use everyday communications technologies, such as FaceTime or Skype, during the COVID-19 public health emergency, without running afoul of HIPAA penalties.”

At the same time, the AHA whitepaper noted that, “Although CMS provided a number of waivers, the agency did not provide licensure flexibility to allow clinicians to legally provide telehealth services in another state if they have an equivalent license in their home state. The AHA is continuing to stress the challenges caused by this limitation and urging the government to address it immediately.”

Another analysis, by Richard P. Darke and Nicole Mirjanich of the Philadelphia-based Duane Morris LLP, explained that, “In the wake of the coronavirus outbreak and social-distancing mandates, the federal government enacted legislation to encourage the use of telehealth services. The Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Preparedness Act), which includes the Telehealth Services During Certain Emergency Periods Act of 2020 (Telehealth Act), was signed into law on March 6, 2020. The Coronavirus Aid, Relief and Economic Security Act (CARES Act) was signed into law on March 27, 2020. These laws temporarily relax certain Medicare restrictions by allowing healthcare providers to treat patients who are at home and by not limiting telehealth services to only those in remote areas, as was previously the case. These laws also provide funding for telehealth grant programs through the Department of Health and Human Services (HHS) and the Federal Communications Commission (FCC). Additionally, penalties for inadvertent and good faith violations of the Health Insurance Portability and Accountability Act (HIPAA) will be waived. Healthcare providers may use popular communication systems, such as Apple FaceTime or Google Hangouts, when providing telehealth services.” They noted that, “Specifically, the Telehealth Act waives the originating site requirements in Section 1834(m) of the SSA (42 U.S.C. 1395m(m)). It defines the emergency area and period to include this COVID-19 public health emergency allowing patients to receive telehealth services anywhere, including in their homes. Patients were previously unable to receive care from their homes and instead were required to travel to an originating site such as a clinic or hospital.”

Further, they wrote, “The Telehealth Act allows providers to use telephones with audio and video capabilities used for two-way, real time communications for the provision of telehealth services. Under federal regulations, conventional landline telephones fail to meet the definition of an interactive telecommunication system and therefore could not be used for telehealth services prior to this waiver.”

What’s more, “Section 3704 of the CARES Act expands the term distant site in Section 1834(m) of the SSA (42 U.S.C 1395m(m)) to include federally qualified health centers (FQHCs) and rural clinics. This modification allows FQHCs and rural clinics to be reimbursed at comparable rates under Section 1834 of the SSA for providing telehealth services to Medicare patients, similar to any other distant site.”

Recently, Healthcare Innovation Editor-in-Chief Mark Hagland spoke with Liz Westbrook, an attorney who is a senior advisor in the Federal Government Relations Practice at Buchanan Ingersoll & Rooney, PC, a Pittsburgh-based law firm, regarding the welter of issues involved. Below are excerpts from that interview.

Once the emergency is declared over, the current regulatory relaxations will end, correct?

I’ve been working on telehealth issues for many years. I love the intersection of legislation and regulation and rapidly advancing technologies. We’ve kind of been held up in telehealth based on a few assumptions that Congress and the federal government make, that instead of replacing care or facilitating preventive care, telehealth will just add to the cost burden, and they’ve said, ‘We need data.’ And it’s been very frustrating lobbying on behalf of providers that we provide data frequently, and it gets ignored. There’s this stance that it costs too much and they need data, and we show them data, and they say, whatever.

So COVID-19 has been interesting. And to CMS’s credit, there have been incredible waivers—around where you can do it—in homes, now; audio-only telehealth has been allowed, geographic originating-site restrictions have been waived. And now we’ve got over a year’s worth of data on how it works.

And many providers have had to scale up quickly. I work with UPMC, both the health system and the health plan, and they’ve always been doing a lot of work in this area. And even for them, they saw this massive spike last March and April in telehealth volume.

So now we have all this data from the last year, and what legislators and regulators are saying is, we had that giant spike, and as we’ve learned to manage COVID, you see a leveling off of many patients going back into in-person care. And no one’s saying we should scrap in-person care. And there has to be a balance, probably by service area.

With regard to the relaxations, which are the most likely for Congress to act on, and which are the least likely?

They need to repeal 1834(m), and get rid of those originating-site and geographic distinctions; arguably, that would have the biggest impact for the largest number of providers and patients. And per the 21st-Century Cures Act, the authors put out a draft for CURES 2.0. There’s something about AI [artificial intelligence]. And one of the provisions is to pull back 1834(m). And I was pretty excited when I saw that.

Prior to the relaxations of last March, the patient had to be in a provider space in order for the encounter to be reimbursed, correct?

Yes. And the rural issue. So I think the rural piece is good for getting certain lawmakers on board, but that leaves a lot of patients out. And to that end, the broadband piece in the infrastructure package will hopefully make a difference, too.

So what will happen once the public emergency is declared ended, at some point?

I’m a little torn on this. I think we lost some momentum there. In December, in the last hour, there were telehealth provisions that were removed that would have extended all the COVID waivers for one or two years. Now, we’re in this 90-day renewal cycle. Then we had January 6 and a new administration, and we have the infrastructure stuff and reconciliation, so all the momentum has died. So I’m hearing from congressional offices, oh, we’ll wait until just before the PHE (public health emergency) expires. We have data from the last 18 months to show how the leveling off worked; and I fear conversations are just now happening, because we’re just so focused on the infrastructure issue.

Could we achieve some version of payment parity? I know that there’s disagreement among provider leaders on whether the differential between the facility rate and individual provider rate should be eliminated permanently; some are for its elimination, but others feel that its elimination would do more harm than good, in that implicit infrastructure costs behind the delivery of telehealth-based care delivery might not be recognized.

I’m not sure, because not even all members of either party agree on it. I’ll talk to Democrats who are for parity for a year or two, whereas others are for extending all services but cutting them all. So there are a lot of conversations about what the rates should be. So I’m not sure at all what’s going to happening. There are rumors that Democratic leadership has legislation ready to extend for a year; but that might also include cuts.

Should payment parity be extended?

For some period of time, yes. There’s this argument that small practices don’t have the overhead costs. But until we have things figured out…

And physician leaders tell me that it costs them essentially as much to do a telehealth visit as to do an in-person visit. And there’s discussion about the RUSH Act, which would create an MSSP program for skilled nursing facilities. But even SNFs handle things differently. So it’s not as though a doctor is at home with an iPad.

So we don’t really know what the timing is on all of this?

For CARES 2.0, I’ve been told by two offices that they want to move something this year. And with the variants—originally, the PHE was expected to run through the end of 2021, but probably longer. And honestly, the longer the PHE goes on, the better for providers. Before COVID, I sat through many a MEDPac and MACPac meeting where they were making the wrong calculations. And they would talk about telehealth visits as though they were additions to the care the patient was already going to receive. But that’s not the right calculus; it’s, do they get care or not? And do they wait until later on?

Is there anything you’d like to add?

One thing that I think everybody should keep on their radar is HIPAA and digital health. Conversations around not just health privacy but consumer privacy, on a federal level. They keep getting interrupted by pandemics and things! But Energy and Commerce is interested in this; there are conversations around how HIPAA might work in the digital health world. So app providers and care providers, everybody, should keep an eye on that.

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