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Volume XI, Number 289

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Opportunity Economy: Telehealth in the Pandemic—and Beyond

Takeaways:

  • Telehealth greatly expanded during the COVID-19 pandemic, in large part due to regulatory waivers. Those regulatory waivers aren’t permanent, but lawmakers are evaluating ways to permanently expand some aspects of telehealth coverage. 

  • While the HHS OIG recognizes the importance that telehealth plays in our healthcare system and will continue to evaluate new telehealth policies and technologies so as to improve care, it will also strive to ensure that they are not compromised by fraud, abuse, and misuse.   

  • Through recent telehealth policies and funding, the government is working to improve healthcare equity and resources for telehealth.  

The telehealth boom during the COVID-19 pandemic impacted nearly every American. Changes made during the public health emergency promise to permanently transform the delivery and availability of healthcare. While these changes were made in rapid response to the pandemic, providers and patients alike discovered that telehealth—providing healthcare remotely via technology—offers advantages and efficiencies that make sense to continue even as the pandemic ends.

Healthcare is perhaps the most highly regulated sector of the economy, so extending telehealth post-pandemic will require regulatory reform as well as consumer demand. 

The State of Telehealth in the Late-Stage Pandemic

Telehealth isn’t a new idea. As Peck said, “Prior to the pandemic, there was an interest from providers and patients, but there were restrictions and limitations that kept telehealth from being as popular as it currently is.”

For example, providers faced geographic restrictions for where they could serve patients. Only certain types of technology could be used. And only a limited number of telehealth services were eligible for reimbursement from Medicare, Medicaid and private payors. 

A study published in JAMA Network Open found that telehealth services grew by 1,000 percent in March 2020 and 4,000 percent in April 2020, with in-person visits declining 23 percent and 52 percent respectively. Those numbers have evened out somewhat, Peck said, but telehealth use remains much more popular than it was pre-pandemic.

“One of the biggest things that has changed has been patient and provider attitudes—we’re more willing to use it,” Peck said.

Also, federal and state governments have lifted many of the previous geographic restrictions temporarily. Technology requirements have been relaxed temporarily to allow for the inclusion of Zoom, FaceTime, and other popular platforms. More services now can be reimbursed, prescription restrictions have been relaxed, and licensure requirements by state medical boards have been eased temporarily. 

“Telehealth has been crucial in the past 18 months, especially in championing healthcare equity,” Peck said. “We are better able to reach underserved populations, including rural populations, with telemedicine.” 

“Telehealth has been crucial in the past 18 months, especially in championing healthcare equity. We are better able to reach underserved populations, including rural populations, with telemedicine.” 

TONI PECK

Not surprisingly, investors have taken notice. Venture capital funding for telehealth reached $15 billion in the first half of 2021, up from $6.3 billion in the first half of 2020.

The rapid increase in telehealth adoption wouldn’t have been possible without regulatory streamlining that came in response to the public health emergency.

“Before the pandemic, telehealth only covered about 100 service areas, primarily those serving beneficiaries in rural areas,” Fleming said. But in early 2020, the Centers for Medicare and Medicaid Services (CMS) expanded Medicare coverage by adding 140 additional services, regardless of location. This includes ER visits, occupational/physical therapy, hospital discharge day issues and other non-critical care services. Also, a much broader range of providers now may provide these services via telehealth.

“This expansion of Medicare and Medicaid coverage helped to spawn payment for telehealth by private insurance payers,” Fleming said. “In allowing this expansion, the government acknowledged the critical role telehealth plays in expanding healthcare access.”

What’s Next in Telehealth?

But while telehealth has played a critical role in expanding healthcare access during the pandemic, the scope of the relaxed regulations was not intended to be permanent. So when do waivers expire and will they be continued?

Fleming explained that currently, the waivers will stay in effect through the end of the public health emergency or the end of the year. “With the Delta surge and the additional challenges that have come this summer and fall, there has been no further extension of the timetable, but that’s not to say there won’t be,” she said.

Such an extension may have a broad base of support, but it won’t necessarily happen automatically or without additional change. 

Over the past several years, federal regulators have scrutinized telehealth arrangements, with a particular concern about fraud and abuse. The pandemic waivers reduced red tape, but federal regulators remain concerned about potential fraud and abuse issues. 

“It’s not as easy as we might hope to permanently remove some of the regulatory requirements relaxed during the pandemic,” Fleming said. “Depending on the regulatory concerns, we may not see it expanded on such a broad base as we are seeing during the public health emergency.”

Peck also noted that some waiver expansions will require Congressional action, not just administrative changes. 

States also will play a role in the continued, permanent expansion of healthcare. Generally, state regulatory schemes are concerned with licensure and scope of practice issues, while federal regulations deal primarily with reimbursement and the prevention of healthcare fraud, abuse, and misuse. So reforming telehealth regulations will require both federal and state action.

“Some states have already made changes to their licensure rules,” Fleming said. For example, Florida has created a specific telehealth license which allows out-of-state providers to become licensed to provide telehealth services in the state. 

“Hopefully, other states will follow suit. It could create a solution to the lack of certain specialists in particular areas,” she said.

The Biden Administration has been busy in addressing telehealth concerns.  In August 2021, the Administration announced a $19 million investment in telehealth, going to 36 recipients serving rural areas and underserved communities. This grant money will fund:

  1. Telehealth technology-enabled learning programs., building mentoring capacity in underserved areas. 

  2. Twelve regional and two national telehealth resource centers. These centers will provide resources, information and education on telehealth to healthcare providers.

  3. Evidence-based direct-to-consumer telehealth networks. Bypasses some of the service restrictions.

  4. The creation of telehealth centers of excellence programs. These centers will assess and improve services in rural and underserved areas with high disease and poverty rates. This work will include piloting new services and publishing research. 

“This award money is exciting because it provides funding for the growth of the actual telehealth structure,” Fleming said.

Looking Ahead: The Near-Future of Telehealth

Of course, expanded access to telehealth services requires that patients have high-speed broadband internet connections.

“We assume that if telehealth exists that everyone can use it, and that simply is not the case,” Fleming said. Many remote rural areas, in particular, struggle with broadband access. The sweeping federal Infrastructure Investment and Jobs Act seeks to address this disparity by providing $65 billion to expand broadband infrastructure.

“We assume that if telehealth exists that everyone can use it, and that simply is not the case.”

ALISSA FLEMING

“The Infrastructure Investment and Jobs Act also has an expansion of Medicare for telehealth, especially for mental health,” Peck said. “A lot of literature coming out of the pandemic shows that the need for mental health has increased greatly, and telehealth is a good platform for mental health care.”

In July, CMS published its 2022 proposed physician fee schedule. The proposal includes extending telehealth services for certain mental health care through 2023 or even permanently. Fleming said this will remove many barriers for receiving mental health care.

“Studies have shown that over a third of the population lives in an area without mental health providers. There’s a real shortage of providers in this field,” she said.

Another change, in response to the opioid epidemic, is that CMS is proposing that the home can be a site for treating substance abuse disorders.

Finally, CMS is asking providers for data about Category 3 telehealth services. This class of services was created during the pandemic to designate healthcare services that can be provided temporarily via telehealth. CMS is now looking at whether there is sufficient evidence to support permanent telehealth coverage of those services.

“Reimbursement is critical because nobody is going to provide services if they aren’t paid for them,” Peck said.

Reimbursement is one of several complex issues that must be considered during any permanent extension of telehealth exemptions. For example, Peck said that if a matter can be resolved in a five-minute phone call, should it be reimbursed at the same rate as an in-office visit?  Other challenges remain, including the low rates of telehealth adoption in low-income and low English proficiency communities.

But even with the challenges, Peck and Fleming believe telehealth will remain an important platform for delivering healthcare services, even after the COVID-19 pandemic recedes.

“All in all, if there’s one thing the pandemic taught us, it’s that telehealth is a viable option,” Peck said. “Perhaps not by itself—we need to look at how telehealth and in-office visits can work together. But telehealth is a way to have a more efficient, equal healthcare system.”

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 266
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About this Author

Alissa Fleming, Womble Dickinson Law Firm, Charleston, Health Care Law Attorney
Of Counsel

Alissa possesses first-hand knowledge of the healthcare industry as an attorney and registered nurse.  Her legal practice and medical background enable her to advise and represent national, regional and local healthcare providers on a broad and diverse spectrum of legal issues.

She has represented healthcare providers in health law and healthcare litigation throughout the duration of her career.  She regularly represents hospitals, long term care facilities, home health agencies, pharmacies, and professionals in healthcare litigation, regulatory...

843-720-4638
Antonia Peck Health Care Lawyer Womble

Toni Peck is a partner in the firm’s Research Triangle Park office and a member of the firm’s Healthcare Team. Her practice is focused on assisting healthcare providers in a variety of regulatory compliance and corporate matters, including Stark law and federal and state Anti-Kickback Statute compliance, HIPAA, 340B Drug Pricing Program, physician recruitment, medical staff issues, and antitrust concerns. 

She also counsels healthcare entities on transactional and business matters, including mergers and acquisitions, joint ventures, reorganizations, management services organizations...

919.484.2324
Mark P. Henriques, Womble Carlyle Law Firm, Jury Trial Attorney, Non-Compete Agreements Lawyer
Partner

Mark has successfully litigated cases involving fraud, unfair trade practices, class actions, non-compete and non-disclosure agreements, and breach of contract. He has experience in state and federal court in both North and South Carolina. Mark has prevailed in numerous trials, arbitrations and mediations. Mark has served as first chair in more than eight jury trials, five of which lasted a week or more. He has successfully argued cases before the Fourth Circuit Court of Appeals and the North Carolina Supreme Court.

704-331-4912
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