October 27, 2021

Volume XI, Number 300

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October 25, 2021

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Telehealth Update: Extension of the Public Health Emergency, OIG Workplan Updates, and the Protecting Access to Post-COVID 19 Telehealth Act

As we’ve discussed in previous posts, since the beginning of the pandemic, telehealth providers have seen a dramatic increase in demand for their services along with a number of temporary regulatory measures aimed at expanding telehealth access to more patient populations.  Most of these measures, on the federal and state level, are tied to the public health emergency initially declared by the Secretary of Health and Human Services (HHS) in January 2020, and subsequently expanded in 90 day increments.  The uncertainty caused by the temporary nature of these measures has resulted in telehealth providers across the industry wondering if, and when, they will need to return to a pre-COVID approach to telehealth.  Below, we outline some important developments that will bring greater certainty to telehealth providers and suggest that expanded access to telehealth is here to stay.

Extension of the Public Health Emergency

The current public health emergency, referenced above, was renewed at the end of the last administration for another 90 days, effective January 21, 2021.  In a recent letter to state Governors, the Acting Secretary for HHS acknowledged the uncertainty caused by the 90 day extensions.  In an effort to bring greater predictability to providers, the Acting Secretary also stated that the public health emergency will likely remain in place for the remainder of 2021.  Finally, HHS has committed to provide states with 60 days’ notice once the decision has been made to terminate the declaration of the public health emergency or let it expire.  Not only does the letter to state Governors provide more certainty to providers, it also demonstrates the new administration’s commitment to providing predictability and stability for health care providers as we continue to navigate the pandemic. 

Telehealth Services and the OIG Workplan

In a signal that the Centers for Medicare & Medicaid Services (CMS) is considering expanding the availability of telehealth services for Medicare beneficiaries beyond the public health emergency, the Office of Inspector General (OIG) has included two telehealth-related sections to the 2021 OIG Workplan.

The first, “Audit of Home Health Services Provided as Telehealth During the COVID-19 Public Health Emergency” will focus on home health services provided during the public health emergency to determine which types of skilled services were furnished via telehealth, and whether those services were administered and billed appropriately.  OIG plans to make recommendations related to the utilization of telehealth services to CMS based on this review.  

The second, “Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency” is explicitly focused on exploring how telehealth services can be expanded beyond the public health emergency.  The audits of Medicare Part B telehealth services will take place in two phases.  Phase one will focus on assessing whether services such as evaluation and management, opioid use disorder, end-stage renal disease, and psychotherapy provided via telehealth meet Medicare requirements.  Phase two audits will focus on Medicare Part B telehealth services related to distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits. 

Re-introduction of the Protecting Access to Post-COVID 19 Telehealth Act

In late January, Reb. Mike Thompson (CA-05), Rep. Peter Welch (VT-AL), Rep. Bill Johnson (OH-06), Rep. David Schweikert (AZ-06) and Rep. Doris Matsui (CA-06) re-introduced the Protecting Access to Post-COVID 19 Telehealth Act.  Initially introduced in July 2021, the bill works to expand the use of telehealth beyond the public health emergency by: 

  • Eliminating most geographic and originating site restrictions on the use of telehealth in Medicare and establishing the patient’s home as an eligible distant site so patients can receive telehealth care at home and doctors can still be reimbursed,

  • Preventing a sudden loss of telehealth services for Medicare beneficiaries by authorizing the CMS to continue reimbursement for telehealth for 90 days beyond the end of the public health emergency,

  • Making permanent the disaster waiver authority, enabling HHS to expand telehealth in Medicare during all future emergencies and disasters, and

  • Requiring a study on the use of telehealth during COVID, including its costs, uptake rates, measurable health outcomes, and racial and geographic disparities.

A press release further describing the legislation is available here

Remaining Challenges

Although the above developments are good signs that the federal government will be taking the necessary steps to ensure that expanded access to telehealth will continue after the pandemic, there is still a great degree of uncertainty on the state level with most temporary measures related to payment parity, waivers of requirements for in-person examinations, interstate licensing, and other key regulatory provisions set to expire with the public health emergency.   We will continue to monitor these federal and state activities in the coming months.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 34
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About this Author

Cassandra L. Paolillo, Health care lawyer, Mintz Levin Law Firm
Associate

Cassie’s practice primarily involves advising health care clients on transactional and regulatory matters, including mergers and acquisitions, regulatory compliance, and general contracting.

Throughout her career, Cassie has worked with providers, payors, and individual patients, so she understands the unique challenges facing clients in the ever-changing health care landscape.

Prior to joining Mintz, Cassie worked as in-house counsel at a national senior living company. There she advised the business on matters related to state and federal health care regulations, physician...

617-348-1828
Ellen L. Janos, Health care attorney, mintz levin law firm,Digital Health PBMs & Pharmacies Hospitals & Health Systems Post-Acute & Long-Term Care Retail & Urgent Care Physician Organizations
Member

Ellen utilizes her in-depth knowledge of health care regulation to assist clients with government audits and investigations, M&A and financing transactions, and corporate compliance activities. She also provides strategic advice to traditional health care providers, investors, and start-ups on telehealth initiatives as well as the traditional practice of medicine across multiple states. Ellen often comments on developments in telehealth, HIPAA, and the corporate practice of medicine. As an assistant attorney general for the Commonwealth of Massachusetts, Ellen represented state...

617-348-1662
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