Latest News

Which Way Forward With Telemedicine? The Regulatory Perspective

By Deborah Borfitz

June 2, 2020 | When COVID-19 hit the U.S., a multitude of emergency waivers to the federal statute governing telehealth were necessary to ensure Medicare-age patients could see their doctor and healthcare providers could continue practicing medicine. In the political arena, some saw this as an example of the overly regulated nature of the Centers for Medicare & Medicaid Services (CMS). To others, it simply signaled the need to update CMS rules specific to telehealth.

The mix of opinions could make telehealth a topic in this year's election cycle debates, says Elinor Hiller, a member of the COVID-19 Task Force of Alston & Bird and a partner in the law firm's healthcare group. Hiller returned to Alston & Bird in March 2019 after serving as the CMS Administrator's senior advisor for Medicare and, earlier, as group director in the CMS Office of Legislation.

Among provider organizations the burning questions include: how long the Medicare waivers will be in place and which might be continued beyond the emergency period—or potentially be made permanent, Hiller says. She has clues, but no answers. How to maintain the momentum with telehealth seems to be high on everyone's list, including CMS Administrator Seema Verna. But lasting change will likely require congressional action.

Historically, expansion of access to healthcare services of any kind has depended heavily on scoring by the Congressional Budget Office (CBO) indicating the move would be cost effective, says Hiller. In fact, it was partly on that basis that capitated Medicare Advantage plans were allowed more latitude in 2020 to offer additional telehealth benefits than traditional, fee-for-service Medicare. These Medicare Advantage benefits can be available in a variety of places—including, most notably, at home versus going to a healthcare facility.

The CBO has consistently projected (most recently in the CARES Act) that giving beneficiaries the ability to see a doctor virtually as well as in person would result in greater care utilization, she continues. Any imagined comparison between the Medicare Advantage experience with additional telehealth benefits and the more limited benefit in fee-for-service Medicare got upended by the waivers making telehealth widely (if temporarily) available to all.

Coverage Conundrums

The cost-effectiveness of telemedicine remains largely unstudied in any meaningful way, leaving the CBO's thinking on telemedicine relatively unchanged since 2015. In a 2018 proposed rule related to additional telehealth benefit in Medicare Advantage, CMS estimated the collective travel time savings for Medicare patients at $60 million, rising to a projected $100 million by 2024. But it also noted the possibility that additional telehealth benefits could lead to an increase in provider visits where face-to-face visits were not otherwise expected to occur.

A systematic review last year by the Agency for Healthcare Research and Quality (AHRQ) cited the need to develop a research agenda that emphasizes rigor and focuses on standardized outcome comparisons that can inform policy and practice decisions. The review included 233 articles and concluded that it is "likely" that telehealth is more effective than usual care in several specific situations: remote intensive care units, emergency medical services access to telehealth, and remote consultations in emergency care and as part of outpatient care.

How much providers want to invest in setting up new models of care will depend in part on their payer mix, says Hiller. What happens with Medicare over the long term may be up in the air, but many Medicare Advantage and private plans already had or have quickly established more generous telemedicine offerings that they may continue.

Absent the waivers currently in place, traditional Medicare will cover telehealth visits when beneficiaries go to a healthcare site to connect with a distant consulting physician, Hiller notes, which is an entirely different model of care than people connecting with their doctors from home. The new flexibilities with telehealth have been entirely on the practitioner's side (Medicare Part B) and not in the context of hospital or home health services (Medicare Part A). "CMS has said some glowing things about the benefit of a home health agency connecting to patients remotely, but that doesn't flow into their payment structure."

But the recent attention paid to telehealth has brought to light payment nuances (e.g., Medicare payments are exactly the same for telehealth and in-person visits) raising questions about the need for more innovative payment models for digital healthcare services, Hiller adds.

If telehealth is going to be a home-based offering, public investment in broadband will also be needed to ensure equitable access in rural areas where internet connections can be notoriously spotty, says Hiller. Teachers in rural America are likewise experiencing the digital divide, being forced to upload teaching materials by parking near a broadband hot spot at their school or local library.

Challenges Ahead

Providers doing (or considering) doing virtual visits across state lines face another quandary. Federal-level waivers allow practitioners to furnish services even in states where they aren't licensed to do so, says Hiller. But state medical boards also need to bless the practice.

The Federation of State Medical Boards has a state-by-state telehealth licensure modification chart on its COVID-19 website indicating that, as of May 26, 49 states, Guam, the Northern Mariana Islands and Puerto Rico have all put temporary telehealth licensure modifications in place. But none of the modifications have been made permanent, according to Joe Knickrehm, director of communications and public affairs.

The appetite for telehealth from the consumer perspective means that many providers will be facing competition from "pure virtual care platforms" for the first time, forcing them to think through which in-person services the technology might replace, Hiller says. Some providers are struggling with how to come up with the right blend and concerned that some patients will think that virtual care is all they need and start skipping well visits, blood work, or other visits that can't adequately be replaced through technology.

Now that the deluge of guidance documents being issued by CMS has returned to a more customary pace, she says, providers might have a fighting chance of wading through all the changes that have been temporarily put in place. But it's important to know where to look since guidance is provided in the form of frequently asked questions as well as through rules and updates to various fact sheets, which is why it's a task she often takes on for clients.

It is also "not obvious" how certain waivers might help providers, she says, or what opportunities may be available in the future.

Load more comments