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Telehealth Update: A Federal Appropriations Bill, A Positive OIG Report, and Good News from HHS

Last week saw a lot of great news in the world of telehealth. On March 15, President Biden signed into law H.R. 2471, the “Consolidated Appropriations Act, 2022”, which extends many of the Medicare telehealth flexibilities put in place during the COVID-19 pandemic for a period following the end of the Public Health Emergency (PHE). The same day, the Office of Inspector General (OIG) issued a report highlighting the positive impact telehealth had on increasing access for beneficiaries during the first year of the pandemic. Then, during a press conference on March 18, the Department of Health & Human Services (HHS) Secretary Xavier Becerra said that HHS will seek to sustain and expand access to telehealth services after the PHE ends. While these developments signal the continued expansion of telehealth, there is still some uncertainty surrounding coverage, reimbursement and licensure flexibilities that have allowed telehealth to flourish for the past two years.

The “Consolidated Appropriations Act, 2022” included a number of provisions related to Medicare coverage of telehealth services. Specifically, the following Medicare waivers will be extended for 151 days following the end of the PHE:

  • Originating Site: Allows Medicare beneficiaries to receive telehealth services from any geographic location, including their home.

  • Expansion of Eligible Practitioners: Allows physical therapists, occupational therapists, speech therapists and audiologists to provide telehealth services to Medicare beneficiaries.

  • Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs): Allows FQHCs and RHCs to continue providing telehealth services.

  • In-person Requirement for Mental Health: Waives the requirement for mental health providers to see patients in person prior to providing behavioral health services via telehealth.

  • Audio-only: Allows Medicare coverage of audio-only services when appropriate.

These extensions will give Congress the opportunity to pass the Telehealth Extension and Evaluation Act, or otherwise make the flexibilities permanent, or alternatively, give providers time to prepare for a return to in-person care.

The OIG report bolsters these Congressional Actions, announcing that “telehealth was critical for providing services to Medicare beneficiaries during the first year of the pandemic.” The OIG found 43%, or more than 2 out of every 5 Medicare beneficiaries used telehealth during the first year of the pandemic. While office visits were the most prevalent type of service accessed during this time, the OIG highlighted the important role telehealth played in increasing access to behavioral health services for Medicare beneficiaries. Throughout the report, the OIG urged CMS, Congress and other stakeholders to consider the important role telehealth played in increasing access to services when decisions are made regarding the future of telehealth. The OIG also referenced two forthcoming reports related to the use of telehealth during the pandemic, which we will highlight here as soon as they are available.

During a press conference at the end of this very busy week, HHS Secretary Becerra commented that HHS will do what it can to sustain and continue to expand access to telehealth following the end of the PHE. Secretary Becerra has previously expressed his support for permanent telehealth expansions that will increase access to telehealth, including taking steps to reduce barriers to care amongst those who need it most.

Despite all of this good news, the “telehealth cliff” still looms for certain providers and patients. For example, without further action by Congress or the Drug Enforcement Administration (DEA), telehealth providers who prescribe controlled substances will need to conduct an in-person examination of the patient once the PHE ends. While an in-person examination is appropriate and necessary to meet the standard of care in some situations, under most circumstances, the requirement does little more than pose a barrier to much-needed care. The American Telemedicine Association and other industry groups have been advocating vigorously for Congress and the DEA to remove the requirement for a prior in-person evaluation permanently post-pandemic. We will continue to follow these developments, including the additional OIG reports on telehealth that are expected to be released in the near future.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 81
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About this Author

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
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
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