Q&A: Congress must act before US falls off ‘telehealth cliff,’ expert says

In a recent letter to Congress, 430 organizations urged policymakers to preserve access to telehealth services for Medicare beneficiaries and advance permanent telehealth reform.

Despite bipartisan support, Kyle Zebley, vice president of public policy at the American Telemedicine Association (ATA), which co-led the letter, said in a press release that there is “much uncertainty around the future of telehealth, creating chaos and concern for patients and health care providers alike, as the ‘telehealth cliff’ threatens to abruptly cut off access to care, especially for our underserved and rural populations.”

Healio Primary Care spoke with Zebley to learn more about telehealth legislation, the role of Congress and HHS in advancing telehealth policies, the provisions that ATA is prioritizing and more.

Healio Primary Care: What legislation has been introduced in the House and Senate to support the continuation of expanded telehealth services after the public health emergency?

Zebley: There are a substantial number of bills out there, and a few comprehensive ones. There is the Protecting Access to Post-COVID-19 Telehealth Act that was introduced by Rep. Mike Thompson, D-Calif., the Telehealth Modernization Act introduced by Sen. Tim Scott, R-S.C., and the more recently introduced CONNECT for Health Act from Sen. Brian Schatz, D-Hawaii. All these bills are bipartisan, and all these bills — even though they go about it in a little bit of a different way — seek to make flexibilities permanent so that all Medicare beneficiaries continue to have access to telehealth at the end of the public health emergency.

In essence, these three bills try to lock in a couple of features that have come about during the pandemic. Most notably and, to us, most importantly, the bills alter the Section 1834(m) restrictions that are embedded in the law. These have been temporarily waived during the pandemic but will go back into effect if the pandemic ends and Congress hasn’t acted. They state that if you are a Medicare beneficiary, in order to receive telehealth benefits, you have to be living in a defined rural area outside of a major metropolitan area, and the originating site for your telehealth encounter has to physically be in a provider’s office.

Prior to the pandemic — going all the way back to 1997 when this feature was passed into law — a very minute number of Medicare beneficiaries were able to have reimbursable telehealth through the Medicare program. Those geographic and originating site restrictions were waived during the pandemic. As it stands now for the duration of the public health emergency, which President Biden’s administration announced on January 22 would at least last for the duration of this calendar year, all Medicare beneficiaries — regardless of where they live and regardless of where they are physically located — are able to access telehealth services. These bills essentially seek to lock in this new feature. The bills also permanently extend telehealth to federally qualified health clinics (FQHCs) and rural health centers (RHCs). There are a few differences and nuances between the three bills, but those are the most notable features.

Audio-only telehealth is not a component of these three bills. It is particularly dealt with in the Protecting Rural Telehealth Access Act that was introduced by Sen. Joe Manchin, D-W.Va.

Healio Primary Care: What are the most important provisions that need to be included in telehealth legislation?

Zebley: We have a lot of priorities, but our highest priority is ensuring that Medicare beneficiaries can access virtual care where and when they need it. It is the geographic and originating site limitations that we are seeking to permanently end.

Another top priority, which is not in any of the three major bills that I mentioned but is in another bill that was just unveiled — the Telemental Health Care Access Act that was introduced by Sens. Bill Cassidy, R-La., Tina Smith, D-Minn., Ben Cardin, D-Md., and John Thune, R-S.D. — would repeal an in-person requirement that is now in place for telemental health services moving forward. This is a priority for us because we think it is a bad policy. It is extraordinarily restrictive for telemental health services in particular, but we also think that as we are looking towards extending these other services to all Medicare beneficiaries in nonpandemic times, we should not be repeating such a so-called “guardrail” for other telehealth services.

At the end of 2020, Congress passed a provision in a spending and COVID-19 relief bill — the last major COVID-19 relief bill that was passed before the end of the Trump administration — making telemental health services a permanent part of the Medicare program post-pandemic. That is obviously a good thing, but it included an in-person requirement, which said that you have to have seen the same mental health provider in the 6 months prior to having a reimbursable telehealth encounter with that mental health provider. We think that is a really bad policy. No practice of medicine laws in the country have an in-person requirement. There are already tremendous mental health care provider shortages. This is adding another unnecessary, clinically inappropriate barrier to care for Medicare beneficiaries. So, that is why we want to see that repealed and not repeated, and why it is such a high priority for us.

Healio Primary Care: What can Congress do to make telehealth expansions permanent?

Zebley: The role of Congress is fundamental. Right now, just like the Trump administration, the Biden administration is extremely supportive of telehealth, as evidenced by public comments from HHS Secretary Xavier Becerra, President Biden and other members of the administration. They want to see it made permanent. They do have tools at their disposal to do various things to advance a good telehealth policy at the federal level. Regarding the geographic and originating site limitations that I mentioned, if we are talking about permanently allowing FQHCs and RHCs to cover telehealth, those are things that need Congress to act if they are going to be a permanent part of the Medicare program moving forward, regardless of how the administration feels about those issues. It is really very clear; it is there in black and white in statute that those restrictions on telehealth services, in particularly in the Medicare program, are going to come right back into force if the public health emergency ends. So, it is just really critical that Congress acts because if they don’t, we are setting ourselves up for what we call the “telehealth cliff” at the end of the public health emergency, where Medicare beneficiaries by the millions who now have access to virtual care will lose that access. This is why we feel a great sense of urgency.

Healio Primary Care: What signs has Congress shown that it is going to implement efforts to make telehealth expansions permanent?

Zebley: We have seen a lot of extremely positive signs. First and foremost, what is so critical and appreciated and puts the telehealth community (providers and patients) in such a unique place is that we are bipartisan. Like I said, both President Trump and now President Biden full-throated their support for making sure that telehealth remains an option for all Americans, including Medicare beneficiaries. How many issues are there in which a community had an ally in the White House on either side of inauguration day? So, we are delighted that we have bipartisan support.

In Congress, all the major measures that I discussed are bipartisan. If you look at the about half-dozen or so committee hearings in the House and Senate that have taken place since the beginning of this year, everyone is supportive of telehealth. They know things have changed with the pandemic and that telehealth is the silver lining of the national pandemic experience, and they want to make sure that their constituents continue to have access to telehealth. So, we are in a really great place. One of the bills I mentioned, the CONNECT for Health Act, has 60 sponsors and cosponsors in the Senate — a filibuster-proof majority — that are exactly 30 Republicans and exactly 30 Democrats. The support is clear.

A big challenge for us are the various obstacles embedded in our system that make it difficult for bills to emerge out of committee, go to the floor of either chamber, then go to conference committee to work out differences between the chambers before being voted on again and sending the bill down Pennsylvania Avenue for the president’s signature. There are just so many obstacles to something like that happening. However, we do think that given past experience, Congress acts on deadlines. So, understanding that the public health emergency is going to end, it is a matter of time. We think that Congress will act, perhaps when their back is more up against the wall, to ensure that Medicare beneficiaries don’t go over the telehealth cliff. We are extremely optimistic. All the signs are there. The support is clear. Now, it is just a question of getting calendar time and having a forcing event to spur Congress to action.

Healio Primary Care: What can HHS do?

Zebley: During the public health emergency, HHS has promulgated a number of rules and reimbursement codes — through the physician fee schedule, for instance — that allow Medicare providers to offer a variety of telehealth benefits and services to Medicare beneficiaries. They have a substantial regulatory role to play here. Also, during the pandemic, they were able to lift a number of regulations, such as HIPPA compliance. But if Congress does not act, HHS/CMS will lose the ability to offer telehealth benefits to all beneficiaries. Instead, they will have a very complex set of reimbursement codes and regulations in place for an extraordinarily tiny sliver of Medicare beneficiaries. Again, it will go back to a world where only rural Medicare beneficiaries who physically get in a car or some other mode of transportation and go to a provider’s office will have access to telehealth services. This is why the role of Congress is so fundamental. Even with all the array of authorities and powers granted to HHS, they cannot supersede the will of Congress.

Healio Primary Care: Do you think telehealth expansions will become permanent? Why or why not?

Zebley: I am extremely optimistic that Medicare beneficiaries will not lose access to telehealth services. Does that mean we get permanence? That is our hope. There are some signs that instead of permanency this year, we could get an extension of flexibilities past the end of the public health emergency, ideally for 2 or 3 years if we do not get permanence. That would give us more time to continue to make the case for permanence, which I still think we will get, even if we end up with an extension at the end of this year.

In terms of audio-only, there are a number of very vocal champions in Congress. Arguably, the most vocal champion for audio-only services is Sen. Manchin, who obviously has a real unique point of influence in Congress. So, I think it is probably safe to say that in some way, shape or form, audio-only will also continue to be offered to Medicare beneficiaries at the end of the public health emergency given the firepower of advocates they have in Congress.

The bottom line is one of real optimism. That being said, health care professionals should understand that Congress needs to hear from them. If they have not done so already, they need to pick up the phone, send an email or communicate somehow with their federal elected officials and say that they do not want to go over the telehealth cliff. They should urge Congress to pass comprehensive measures to make sure that Medicare beneficiaries maintain access to virtual care at the end of the public health emergency.

Reference:

American Telemedicine Association. https://www.americantelemed.org/press-releases/7-26-telehealthcliff/. Accessed August 3, 2021.