Advocating for Postpandemic Telehealth Priorities: Ensuring Access and Equity
Jacqueline M. Kocinski, MPP
Among the many changes triggered by the coronavirus pandemic, the dramatic increase in adoption of telehealth by patients and healthcare providers stands out.
Upon declaration by the U.S. Department of Health and Human Services (HHS) of a COVID-19 public health emergency (PHE), federal policymakers rolled out legislation and issued regulatory waivers that immediately facilitated greater access to telehealth services.
Chief among these was removing geographic and originating site restrictions that had required both that a patient live in a rural area and be located at a physician’s office or certain other clinical sites to utilize telehealth. Important for hospice and palliative care, the Drug Enforcement Administration (DEA) also adopted temporary policies to allow DEA-registered practitioners to prescribe controlled substances without having to interact in person with their patients.
Three years on, telehealth has changed how care is delivered. An American Medical Association (AMA) survey showed that 80% of physicians conducted telehealth visits in 2022, which is nearly triple the rate in 2019. Palliative care practices were among those that pivoted during the pandemic. Leveraging communications technologies to expand their capacity to treat patients with serious illness, some Academy members say as much as 70% of their practice is now conducted via telehealth.
Now, with the May 11, 2023, end of the PHE, many of the telehealth practices to which patients and providers have become accustomed have either ended or been extended temporarily. In the face of these changes, AAHPM and our stakeholder partners are continuing to advocate for permanent policies that will ensure equitable access to and payment for virtual care.
Key Waivers Extended
AAHPM supported the provisions in the Consolidated Appropriations Act, 2023 (CAA)—which passed Congress and was signed into law at the end of 2022—that extend through December 31, 2024, key telehealth flexibilities that were permitted during the COVID-19 PHE, including
- continuing the expanded list of qualifying telehealth providers
- waiving originating site and geographic location requirements
- covering certain audio-only telehealth services
- using real-time, two-way, audio-video telecommunications technology to satisfy the face-to-face requirement for hospice recertification
- allowing federally qualified health centers and rural health clinics to provide telehealth services to Medicare beneficiaries as distant site providers (versus being limited to serving as an originating site where a beneficiary is located)
- extending the Acute Hospital Care at Home program.
The expanded list of Medicare-covered services can be provided via telehealth through the end of 2023, giving the Centers for Medicare & Medicaid Services (CMS) time to collect data that may support their inclusion as permanent additions to the Medicare Telehealth Services List.
CMS has offered a rulemaking approach to updating provisional telehealth services in its proposed 2024 Physician Fee Schedule.
Policies adopted during the PHE to allow DEA-registered practitioners to prescribe controlled substances to patients without a prior in-person interaction or telemedicine visit in a DEA-registered facility also have been temporarily extended.
In late February, the DEA issued proposed rules intended to establish permanent prescribing flexibilities under certain circumstances. Notably, the DEA’s proposals would not permit the prescribing of Schedule II and/or narcotic controlled medications via a telehealth visit without a prior in-person medical evaluation by the prescribing medical practitioner or referral from a medical practitioner who conducted a prior in-person medical evaluation.
In the Academy’s comments on the rules, AAHPM explained how the DEA’s proposals create significant barriers for patients with serious illness and noted that its referral requirements were not only onerous (eg, a prescriber would have to validate whether a referring provider is registered with the DEA, despite the lack of an automated or low-burden mechanism to do so) but also failed to recognize the realities of team-based care (eg, a referral must note the name and National Provider Identifier of the practitioner to whom the patient is being referred).
Additionally, AAHPM expressed concerns that the complexity and prescriptive nature of some of the requirements could have a chilling effect on referrals, with some clinicians likely unwilling to refer patients under the qualifying telemedicine referral mechanism, due to concerns they may be liable if the prescriptions are later associated with abuse or diversion.
AAHPM urged the DEA not to finalize its proposals through at least the end of 2024, to align with the extension of Medicare telehealth flexibilities Congress enacted via the CAA. Rather, the Academy argued for the DEA to use its regulatory authority to continue the telemedicine prescribing flexibilities for controlled substances that have been in place during the COVID-19 PHE and use the time to work with stakeholders to implement a telemedicine special registration process. Such a process would enable qualified practitioners to prescribe controlled substances via telemedicine without a prior, in-person medical evaluation and thus better support timely, effective care for patients with serious illness, including those receiving palliative care.
Separately, AAHPM asked the DEA to clarify that in-person evaluation requirements for prescribing of controlled substances do not apply to patients enrolled in hospice or, if they do, to ensure that a telemedicine registration process would allow for such an exemption.
Given the overwhelming response to its proposals—which generated more than 38,000 public comments—the DEA recognized it would require additional time to finalize permanent policies. So, along with the Substance Abuse and Mental Health Services Administration, the DEA ultimately issued a rule, "Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications," which took effect May 11, 2023, and extends the full set of telemedicine flexibilities adopted during the COVID-19 PHE for 6 months—through November 11, 2023. Under this temporary rule, however, the DEA also is effectively providing a 1-year grace period. That is, the full set of telemedicine flexibilities for prescribing controlled medications that have been in effect during the COVID-19 PHE will be extended through November 11, 2024, for any practitioner-patient telemedicine relationships that have been or will be established up to November 11, 2023.
Flexibilities Slated to End
During the COVID-19 PHE, CMS waived Medicare and Medicaid requirements that physicians and nonphysician practitioners be licensed in the state where they are providing services if certain conditions were met. Upon termination of the PHE, however, state licensure requirements again apply.
The PHE also permitted Medicare-covered providers to use any non–public-facing application to communicate with patients without risking federal penalties, even if the application is not in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The HHS Office for Civil Rights allowed a 90-day transition for this flexibility, with the nonenforcement discretion ending on August 9, 2023. The HHS Office of Inspector General enforcement discretion regarding collection of cost-sharing for telehealth/virtual services ended with the PHE in May.
The policy allowing virtual presence to satisfy direct supervision requirements will be in effect only through the end of 2023 (though CMS has addressed this in the 2024 proposed Physician Fee Schedule). AAHPM has called on CMS to allow additional time to study the impact of direct supervision via virtual presence and to consider the potential benefits of extending this flexibility permanently to a small subset of services for which virtual supervision may be of high value and low risk of patient harm.
In the wake of the coronavirus outbreak, CMS also amended regulations to allow hospices to provide services to Medicare patients receiving routine home care through telecommunications technology (eg, remote patient monitoring; telephone calls, audio only, and teletypewriter; and two-way audio-video technology), when it was feasible and appropriate to do so, though only in-person visits were to be recorded on the hospice claim. This interim regulatory change expired at the end of the PHE. While the expectation is that hospices can continue to use telecommunications technology for virtual communications in follow up to in-person care (as long as the use of such technology does not replace an in-person visit), AAHPM requested that CMS provide clarification on this policy in the 2024 Hospice Wage Index Final Rule. In that rule, CMS noted that it would "expect telehealth services to be summarily limited to follow-up contact with patients and would not expect to see the provision of hospice services furnished via telecommunications systems."
Even before the coronavirus pandemic, AAHPM supported meaningful telehealth policy. The Academy helped inform development of the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2019—specifically a provision to permit the use of telehealth in recertification for hospice care—and endorsed this legislation designed to expand telehealth permanently while enhancing oversight and gathering data on its impact.
In the last Congress, AAHPM supported bills that would establish permanent policies for the post-COVID era, including the Telehealth Modernization Act and the CONNECT for Health Act of 2021. As the PHE wound down, AAHPM continued to be a strong advocate for needed flexibilities, urging Congress to extend key waivers following the end of the emergency declaration, to allow time for permanent, comprehensive policy to be passed. To establish a pathway for reform, the Academy has joined stakeholders in calling on HHS to complete telehealth-related evaluations by fall 2023 and provide recommendations to Congress, so that lawmakers can develop and pass evidence-based telehealth legislation for implementation in 2024.
Even if permanent policies are enacted, however, it’s clear that a number of other issues will need to be addressed to ensure a modern healthcare system can support high-quality telemedicine. AAHPM will be paying particular attention to supporting efforts aimed at improving coding and payment for telehealth visits, including audio-only encounters, to ensure fair reimbursement for clinician services whether they are performed in person or via telehealth; tackling technology challenges faced by patients and providers; and advancing health equity in the emerging virtual care landscape.
In AAHPM's comments on CMS’s 2023 Medicare Physician Fee Schedule proposed rule, the Academy addressed many such telehealth priorities, including to recommend that CMS continue coverage and payment of audio-only evaluation and management services (at their current valuation) and advance care planning services outside the context of the COVID-19 PHE.
Prior to the pandemic, Medicare paid for a limited number of telehealth services in very restricted circumstances at facility rates about 30% below in-office visit rates. AAHPM supports higher Medicare payments (no site-of-service differential) for telehealth visits until they can be appropriately valued by the AMA Relative Value Scale Update Committee (RUC). To that end, the Academy offered details on telehealth in the practice of hospice and palliative medicine to inform the efforts of a joint workgroup of the AMA Current Procedural Terminology (CPT) Editorial Panel and RUC that was charged with updating and expanding the existing CPT code sets for virtual services. RUC will make recommendations to CMS this year regarding the valuation of the codes, and CMS will ultimately determine whether to incorporate the newly proposed coding and values for the 2025 Medicare Physician Fee Schedule.
In March, AAHPM submitted comments on CMS-proposed rulemaking intended to improve the electronic exchange of healthcare data and streamline processes related to prior authorization to further interoperability.
Finally, AAHPM believes that greater broadband access is essential for ensuring health equity and thus has repeatedly called for federal investments that would support expansion of broadband, to ensure all communities and geographies have the connectivity necessary to leverage the many benefits of virtual care.
While these various policies take shape, AAHPM will continue to advocate for sound telehealth reforms that support the care of patients with serious illness, and our Academy remains committed to working with CMS, regulatory agencies, legislators, and the provider community to consider how best to ensure that telehealth policies appropriately balance patient access with safety, quality, and program integrity.