Largely overlooked in the 900+ page 21st Century Cures Act (the “Cures Act”) signed into law on December 13, 2016, was a directive from Congress for further study into the use of technology for the delivery of health care services.¹ A second bill signed into law the following day – the ECHO Act – detailed additional research to be conducted by the Department of Health and Human Services (HHS) into the use of technology to connect urban and rural health care providers.² These studies, coupled with efforts by other federal government agencies, suggest that there may be more significant governmental support for the adoption and reimbursement of telehealth practices in the near future.

Cures Act

First, Congress concluded that the Centers for Medicare and Medicaid Services (CMS) should expand the list of eligible originating sites (i.e., sites where the patient is located) for the delivery of telehealth services. Currently, the reimbursement for telehealth services are limited by criteria defining the (i) type of eligible medical care, (ii) the location of the patients receiving service, and (iii) the classification of the health care provider.

Pursuant to the Cures Act, Congress directs CMS to identify:

• the recipients of Medicare and Medicaid services whose care may be improved by the expansion of telehealth services currently reimbursed by CMS;

• all demonstration projects, models or initiatives being conducted by the Center for Medicare and Medicaid Innovation, which examine the use of telehealth services;

• the types of high-volume services and diagnoses that may be suitable using telehealth platforms; and

• the possible barriers that prevent the expansion of telehealth services currently covered by the Medicare and Medicaid programs.

CMS will have until December 14, 2017 to deliver a report to Congress containing this information.

Additionally, under the Cures Act, Congress directs the Medicare Payment Advisory Commission (MedPac) to study telehealth services for which payment is currently made under Medicare Part A (Hospital) insurance, Medicare Part B (Medical) insurance, and private health insurance plans. Congress directs MedPac to research approaches that can be taken to expand payments to cover those services that are covered under private health insurance plans but not under Medicare Part A/Part B. MedPac will have until March 15, 2018 to deliver a report to Congress.

ECHO Act

Separately, the ECHO Act was also signed into law on December 14th. This legislation seeks to build on "Project ECHO" initiated by the University of New Mexico in 2003.³ This Project created a "hub and spoke" platform for urban health care specialists to connect with rural health care providers to enable the delivery of health care in rural areas. No direct doctor-to-patient care is provided through Project ECHO. Instead, the urban and rural health care providers participate in teleconferences and "grand rounds" so that they may collaborate and share medical knowledge.

Under the ECHO Act, Congress directs the Secretary of HHS to study, and then report back to Congress, its findings on the role that technology can serve to promote the collaboration between rural and urban centers. The report is to provide a review of the programs that are currently in place, focusing on the programs that:

• address mental and substance use disorders, chronic diseases and conditions, prenatal and maternal health, pediatric care, pain management, and palliative care;

• address health care workforce issues, such as specialty care shortages and primary care workforce recruitment, retention, and support for lifelong learning;

• relate to disease prevention, infectious disease outbreaks, and public health surveillance; and

• deliver health care services in rural areas, frontier areas, health professional shortage areas, and medically underserved areas, and to medically underserved populations and Native Americans.

In addition, the ECHO Act report calls for HHS to work with stakeholders to analyze technology-enabled collaborative learning and capacity building models. These models are a distance health education model that connects specialists with multiple health care professionals through simultaneous interactive videoconferencing in order to facilitate case-based learning, disseminating best practices and evaluating outcomes.

By December of 2018, HHS must deliver a report which describes the impact of these models on health care provider retention (especially in health professional shortage areas). The report will include information on the access to and quality of care for patients; barriers faced by health care providers and communities in adopting these models; the impact of such models on ability of health care providers and specialists to practice to the full extent of their education, training and licensure (including the effects on patient wait times for specialty care); and the cost-effectiveness of such models.

Finally, HHS must include in its report to Congress a list of technology-enabled collaborative learning and capacity building models under the HHS Secretary in the 5 years immediately preceding such report; recommendations on how to reduce barriers for using such models; opportunities for increasing the adoption of these models; and recommendations on the roles of such models in continuing medical education and lifelong learning.

The reports Congress has directed under the Cures Act and the ECHO Act should provide a comprehensive picture of the current state of play with respect to telehealth programs and reimbursement for telehealth. While the Cures Act focuses on the options to better integrate telehealth solutions into federally-funded programs such as Medicare and Medicaid programs, the ECHO Act focuses on the ability to connect health care providers in urban areas with those in rural areas and to improve delivery of care through sharing of knowledge.

FCC Funding for Telehealth

At the same time that HHS is studying and reporting to Congress, the Federal Communications Commission (FCC) continues to distribute funds to encourage the development of broadband service for telemedicine purposes in rural areas. In particular, the FCC recently overhauled the Rural Health Care Program to encourage further development of telehealth programs in rural areas.

Eligible parties are able to obtain funding to construct and maintain broadband networks to serve patients and share data,⁴ with approximately $400 million dollars being distributed on an annual basis. Parties eligible for funding include: post-secondary educational institutions offering health care instruction, teaching hospitals and medical schools; community health centers or health centers providing health care to migrants; local health departments or agencies; community mental health centers; not-for-profit hospitals; rural health clinics; skilled nursing facilities; and consortia of health care providers consisting of one or more entities described above.

Finally, the FCC is seeking comment on a range of proposals to expand the pool of eligible participants in the Rural Health Care Program to non-rural health care providers, and to encourage the adoption and accessibility of broadband-enabled health care solutions.⁵ Comments are due on January 11, 2017, and parties are encouraged to provide policy proposals and examples of how broadband services can be used to improve the delivery of health services.

By 2020, it is estimated that telemedicine will be a $34 billion industry,⁶ and 90% of large companies have already integrated telemedicine solutions.⁷ Additionally, a recent study by the Federation of State Medical Boards found that telemedicine is currently the most important medical regulatory topic to be addressed.⁸ The studies called for in the new legislative directives, along with the FCC's efforts to fund the buildout of telemedicine networks and explore additional broadband-enabled health care solutions, are likely to further encourage the adoption and reimbursement of telemedicine.

By working with health care providers, HHS will be able to provide a more comprehensive analysis to Congress.

^{1  Pub. L. No. 114-255 (Dec. 13, 2016).}

^{2  Pub. L. No. 114-270 (Dec. 14, 2016).}

^{3  See  162 Cong. Rec. S6523 (Nov. 29, 2016) (statement of Sen. Roger Wicker).}

^{4  See 47 U.S.C. § 254(h)(7)(B) (2016).}

^{5  See #Solutions2020 Call to Action Plan, Public Notice, rel. Dec. 19, 2016 (https://apps.fcc.gov/edocs_public/attachmatch/DOC-342689A1.pdf) (last visited Jan. 2, 2017).}

^{6  See Global Telemedicine Market, Modor Intelligence, Aug. 2015 (https://www.mordorintelligence.com/press-article/telemedicine-market) (last visited Jan. 2, 2017).}

^{7  See The Large Employers' 2017 Health Plan Design Survey, National Business Group on Health, Aug. 9, 2016 (https://www.businessgrouphealth.org/pressroom/pressRelease.cfm?ID=281) (last visited Jan. 2, 2017).}

^{8  See 2016 State Medical Board Survey, Federation of State Medical Boards, rel. Dec. 15, 2016 (http://www.fsmb.org/Media/Default/PDF/Publications/20161215_annual_state_board_survey_sesults.pdf) (last visited Jan. 2, 2017).}