What will the post-COVID-19 health care landscape look like?
The public health emergency (PHE) caused by the COVID-19 pandemic has resulted in systemic changes throughout the nation’s health care system. Almost overnight, health systems, providers and the government were forced to collaborate to ‘stand up’ field hospitals, testing sites, and quarantine procedures, while postponing or cancelling certain elective procedures and ceasing in-person encounters. One of the most significant developments in the response to COVID-19 has been government support for the expansion of telehealth services, which represents a significant departure from longstanding resistance – in the form of regulatory restrictions, payment policies, licensure restrictions, and privacy concerns – to the provision of health care via telehealth. Most recently, the President issued an Executive Order that directs the Secretary of the Department of Health and Human Services (HHS) to propose regulations to codify some of the key telehealth changes, and notes that almost half of Medicare fee-for-service primary care visits during the month of April were provided via telehealth.
This article provides a high-level overview of those changes, highlights key issues for health care providers to monitor as federal and state governments, physicians and patients continue to battle the COVID-19 pandemic, and considers how the post-COVID-19 health care landscape will look for telehealth services.
Legal and Policy Changes Affecting Telehealth During COVID-19
With the onset of COVID-19 in March 2020, Congress passed a series of COVID-19-related relief bills that relaxed prior restrictions on the provision of telehealth nationwide. Prior to the COVID-19 pandemic, Medicare – whose regulations strongly influence the practices of most health systems, providers and commercial payors nationwide – generally limited the availability of telehealth services to patients in rural areas who were able to go to a hospital or similar medical facility to receive the telehealth service. Effectively, most patients were still required to go to a provider’s office to receive telehealth services.
The COVID-19 legislation allowed the Centers for Medicare and Medicaid Services (CMS) to exercise new authority to waive requirements related to the delivery of telehealth services, and allowed patients to receive telehealth services in their own homes during the PHE. CMS expanded the types of services that can be provided via telehealth (including via audio-only communications) by adding 135 services, imposed payment parity so providers can be paid at equivalent rates for in-person and telehealth visits, and indicated that it would permit providers to furnish telehealth to both new and established patients. In parallel with CMS’s policy changes, the Office of Inspector General (responsible for fraud and abuse enforcement) issued a notice that providers could waive cost-sharing amounts due for telehealth services, and many state and commercial payors followed suit to waive cost-sharing for telehealth services during the PHE. The HHS Office for Civil Rights – responsible for HIPAA enforcement – issued its own notification that it would not penalize providers under HIPAA for using common communications technologies such as FaceTime, Zoom, Skype or Google Hangouts to conduct telehealth visits, which further expanded access to care for patients who could access telehealth services only through a mobile device and not a HIPAA-compliant platform. Finally, CMS waived certain federal restrictions tied to state licensure, and states correspondingly relaxed state licensure requirements to enable out-of-state practitioners to provide services via telehealth under emergency licenses or by virtue of being licensed in good standing in another jurisdiction.
On August 3, 2020, the President issued an Executive Order on Improving Rural Health and Telehealth Access (Executive Order) that directs HHS to review the temporary telehealth measures implemented during the PHE, and propose regulations to extend – beyond the duration of the PHE – measures addressing the additional telehealth services available to Medicare beneficiaries, and the services, reporting, staffing and supervision flexibilities offered to rural health providers. The Executive Order notes that there has been an increase in virtual visits for Medicare beneficiaries from approximately 14,000 per week prior to the PHE to almost 1.7 million in the final week of April. CMS immediately signaled support for the permanent expansion of telehealth under Medicare, indicating that CMS will propose to permanently allow certain visits to be performed via telehealth in patient homes, among other changes.
Key Points for Continued Integration ofTelehealth by Providers
The COVID-19 pandemic has seen providers work hard to expand access to care via telehealth despite significant financial challenges. But many of the policy changes that have been made are tied to the pendency of the COVID-19 pandemic, or are subject to rescission at any time, which threatens structural changes providers have implemented. The question thus remains for providers and patients whether telehealth is here to stay, or will recede as health care offices re-open unless the government follows through with initiatives to permanently adopt changes to telehealth regulations.
Providers may need to work with payors and policy stakeholders to meaningfully implement more permanent measures to create an environment that is favorable to telehealth and enable continued integration of telehealth practices into day-to-day practices. Providers will need alignment among payors and regulators in the form of continued payment parity for certain telehealth services, additional guidance or relaxed security restrictions applicable to the delivery of telehealth via common communications applications (e.g., FaceTime, Skype, Zoom or Google Hangouts), and codification of current waivers allowing new and established patients nationwide to obtain telehealth services from home. The President’s Executive Order indicates that there is meaningful federal support for permanent expansion of telehealth services following the PHE. It remains to be seen what specific telehealth “flexibilities” HHS will seek to extend, and whether HHS will correspondingly extend flexibilities under HIPAA and fraud and abuse laws that have allowed telehealth to flourish.
Providers Have an Opportunity to Contribute to the Post-COVID-19 Policy Conversation
Amidst the devastation wrought by COVID-19, the emergence of telehealth as a viable alternative model for the delivery of care is a development with significant potential that should not be discarded lightly. It is encouraging to see preliminary proposals in national legislation and via the Executive Order – mirrored by proposed legislation in certain states, including Connecticut – to make permanent certain changes and support patients’ continued access to telehealth services. Current proposals to extend COVID-19 waivers also provide opportunities for telehealth to become further integrated in the health care system. Extensions of the waivers may reduce the likelihood that the government and payors will eventually scale back telehealth services and benefits, but now is the time for providers to look for opportunities to participate in the legislative and policy-making process and shape the post-COVID health care system.
Conor Duffy and Peter Struzzi are attorneys with Robinson & Cole LLP.