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CCHP Leadership Provides A Look Back at Telehealth Policy in 2022: Yes...The Year is Almost Over!

Mei Kwong

December 20, 2022

As another full year of living under the public health emergency (PHE) for COVID-19 comes to an end, we are taking a look back to see what has happened this year with telehealth policy on both the federal and state level.

Since the PHE is still in place and likely to continue into 2023, permanent changes on the federal level have been fewer in comparison to what many states have been doing. In fact, some states began making permanent telehealth policy changes as early as late 2020. Other states have taken similar actions to their federal counterparts and put a definitive future expiration date on temporary telehealth policies.

The most significant federal legislative telehealth policy action seen this year took place in the Budget Act of 2022 which included language extending some of the temporary waivers to telehealth in Medicare for an additional 151 days after the PHE. This statutory change led to additional clarifications that the Centers for Medicare and Medicaid Services (CMS) made in their Physician Fee Schedule for 2023 (PFS). CCHP also recently released a fact sheet on the relevant telehealth policies. The final result as the policy stands now is:

For 151 Days After the PHE:
Certain providers including federally qualified health centers (FQHCs), Rural Health Clinics (RHCs), occupational therapists, and physical therapists may continue to provide eligible services via telehealth under the Medicare program.
The list of temporary services eligible to be delivered via telehealth and covered by the Medicare program will continue to be available during this 151-day period.
The geographic limitations under permanent telehealth Medicare policy will be suspended during this 151-day period and the home will continue to be an eligible originating site for all eligible services during the extension.
Audio-only can continue to be used as a modality for eligible services during the 151-day extension.
Permanent policy requirements such as a previous in-person visit for mental health services taking place in a non-geographically eligible location, in the home or via audio-only is suspended during this 151-day period.

Certain other federal waivers that exist under the PHE are currently not included in this 151-day grace period. This includes the Office of Civil Rights (OCR) exercising discretion in enforcing HIPAA which OCR has noted will expire when the PHE is declared over or expires, whichever comes first. As can be seen by the foregoing, very little has changed this year regarding permanent policy, just what will happen in the immediate aftermath of the end of the PHE.

There have been some indications that Congress may pass legislation to extend the federal waivers, or at least some of them, beyond the 151-day period. HR 4040 authored by Representative Liz Cheney (R, WY) passed the House earlier this year, but no further action was taken. That bill would have extended some of the temporary waivers for an additional two years. However, what might be considered by Congress now is rumored to be only a one-year extension. It remains to be seen if some additional action will be taken legislatively.

Feeding into the federal policymakers’ decision-making process have been several reports from various federal agencies in the past year. The Office of the Inspector General (OIG) released several reports around telehealth in 2022 including:

Telehealth Was Critical for Providing Services to Medicare Beneficiaries During the First Year of the COVID-19 Pandemic
Certain Medicare Beneficiaries, Such as Urban and Hispanic Beneficiaries, Were More Likely Than Others to Use Telehealth During the First Year of the COVID-19 Pandemic
Medicare Telehealth Services During the First Year of the Pandemic: Program Integrity Risks

The last study listed above is important to take note of given the concerns raised by policymakers for the potential of abuse and fraud. However, the OIG report noted that in the first year of COVID-19, less than 1% of telehealth claims made to Medicare raised flags for potential fraud, which should provide some reassurance to policymakers.

Broadband has been an issue both on federal and state policymakers’ minds. While connectivity is a greater issue beyond how it impacts telehealth, it cannot be denied that telehealth will simply not work if the patient and provider cannot connect, although policy expansions related to audio-only have sought to mitigate this gap to a certain extent. In 2022, the Federal Communications Commission transitioned the Emergency Broadband Benefit Program into the Affordable Connectivity Program which provides assistance in paying for connectivity. The National Telecommunications and Information Administration (NTIA) compiled federal funding opportunities that support broadband planning, digital inclusion and deployment projects on one site. States have also been gearing up activity around broadband, some of it funded by the federal government such as NTIA awards to Nebraska to develop strategic plans to expand high-speed broadband and other investments made by the state itself. No doubt, broadband will continue to be a significant issue in 2023.

As CCHP’s recent Legislative Roundup newsletter noted, 2022 was another active year for state telehealth policy legislation, though not as robust as it was in 2021. Overall, in 2022, of the bills enacted and subjects CCHP tracked, licensure proved to be the most popular policy issue addressed with 61 bills across the states passing. This was followed by 27 enacted bills related to professional regulations and telehealth, many having to do with prescribing and 18 bills for pilot/studies/demonstrations. Enacted Medicaid and private payer reimbursement bills were 17 and 12, respectively.

The licensure focus is of particular interest to note. While many of the pieces of legislation passed related to joining licensure compacts, states also made exceptions to licensure for specific situations. States are starting to address the various situations usually involving an already established relationship between patients and providers that prior to the pandemic had remained grey areas. A common concern raised during the pandemic related to licensure involved a patient temporarily re-locating to another state, perhaps as a college student, going on vacation or caring for a family member, but still wanting to receive services from their own provider in their home state. Kentucky passed HB 188 that forbids a regulatory board from promulgating regulations related to telehealth that prohibit “the delivery of telehealth services to a person who is not a permanent resident of Kentucky who is temporarily located in Kentucky by a provider who is credentialed by a professional licensure board in the person’s state of permanent residence.” While clarity is always welcomed, the exceptions individual states are passing will create more complexity in the telehealth policy landscape particularly for practitioners who provide services in multiple jurisdictions.

Reimbursement is an area that generates significant interest. For Medicaid related legislation, the type of modality used and services that would be covered under the program were popular issues addressed through legislation. For example, Virginia SB 426 requires the Medicaid state plan be amended to allow for remote patient monitoring (RPM) services for patients with certain types of medical conditions such as high-risk pregnancy and transplant patients when there is evidence that use of RPM is likely to prevent readmission to a hospital.

Private payer telehealth legislation can also be quite specific. Louisiana HB 304 now requires telehealth coverage and payment parity equivalent to in-person services for physical therapy in particular. However, what we also saw were legislators moving towards ensuring there were patient protections/choice codified in state laws related to private payer plans and telehealth. Mississippi SB 2738, among other things, states that insurers cannot limit coverage of services to select third-party organizations. Commercial plans only offering telehealth delivered services to enrollees through a third party and not allowing their in-network providers to use telehealth has been a concern that was growing even prior to the pandemic. This stems from concerns raised by policymakers regarding patient choice or patients being “forced” to use telehealth and continuity of care concerns that continue to exist today.

Overall, the number of states expanding telehealth policies increased. As noted in CCHP’s latest update to its 50 State Telehealth Policy Summary Report, Fall 2022, compared to its Fall 2021 update, three more state Medicaid programs are covering store-and-forward telehealth, five more states are covering RPM under Medicaid, and state Medicaid programs covering audio-only went up from 22 states to 34 states and DC. Additionally, three states have added payment parity requirements to their private payer laws.

As noted above, rumors have swirled around that there may be movement on the federal level to extend some of the telehealth waivers beyond the 151-day grace period, similar to what was proposed in the Cheney bill. However, it is likely that any such change will be included in a larger bill, such as the budget bill, rather than a standalone telehealth bill. There are also several outstanding issues that continue to not be addressed such as the registry for telehealth that the Drug Enforcement Administration (DEA) was to finalize regulations for in 2019. Some may recall that among the list of exceptions to allowing telehealth to be used to prescribe a controlled substance without the telehealth provider having examined the patient in-person included when a PHE was declared and the creation of a registry. For the registry, presumably once a provider is qualified to be on the registry, they need not have to meet any of the other narrow exceptions to prescribe via telehealth. That registry has never been created, though Congress had directed the DEA to finalize regulations by the end of 2019.

On the state level, we likely can expect to see continued action around coverage, licensure, and professional regulations, as well as continued discussion around patient choice. During this past year, there has been increased discussions regarding “telehealth-first” health plans and the impact on patient choice. Whether policymakers take a more active role in regulating these plans remains to be seen, but the discussion around patient choice protections will continue.

One thing is clear: the telehealth policy landscape is by no means “settled” as 2022 draws to a close. Outstanding questions around temporary policies still remain and even settled policies implemented a year or so ago have been tweaked in some states. To hear more about what's occurred in 2022, plus what we can anticipate for 2023, watch CCHP's newest short video.

As we head into 2023 we can be certain that the telehealth policy landscape will continue to evolve and change, and we look forward to having you continue on this journey alongside CCHP.

Have a Happy New Year and see everyone in 2023!

Mei Kwong,
CCHP Executive Director

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