What the "Telehealth Cliff" Means for Provider Coverage Requirements

July 14, 2022
Munsch Hardt Legal Health Care Update

While the concept of telehealth and other digital health care practices have been around for years, the COVID-19 pandemic pushed this delivery of health care services into the mainstream for both patients and providers alike. This is in large part due to Public Health Emergency (“PHE”) statutes and regulations established by the U.S. Department of Health and Human Services (“HHS”). The end of these protections  looms on the horizon as the current PHE period is set to expire on Monday, July 18, 2022. While HHS has renewed the current PHE nine times since it was established, another renewal is uncertain. If not renewed, the telehealth waivers and increased flexibility for providers allowed under the PHE would end 151 days after its expiration. Expanded health care providers’ ability to use telecommunications technologies to support long-distance clinical care would be in jeopardy and, if not corrected, could lead to the health care industry falling off the “telehealth cliff.”

Prior to the PHE, Medicare patients could only access telehealth services from their homes if they met specific geographic and site-of-service requirements, such as whether or not those patients live in rural areas. The PHE largely suspends those requirements and allows health care providers to offer greater accessibility to a broader range of professionals who can see patients utilizing telehealth technologies. In addition, some requirements that have a more stringent levels of compliance when services are offered digitally (such as privacy requirements) were relaxed.

Providers, including those that treat Medicare beneficiaries as well as those whose care is paid for by private insurance companies, should be prepared for a number of significant changes if and when the PHE ends. Some examples of potential changes include:

  • All prior relationship requirements for Medicare could be reinstated, forcing beneficiaries to see an in-person provider for care.  
  • Medicare beneficiaries who do not qualify for the “rural” exception could lose nearly all telehealth services. Even those who are qualified for the “rural” exception could be forced to use new or unfamiliar video platforms during telehealth services. 
  • Beneficiaries may not be able to see providers licensed in other states and certain types of providers – namely, physical therapists, speech pathologists, and similar practitioners – could be barred from telemedicine entirely. 
  • Finally, beneficiaries may face cost-sharing requirements for previously waived services, such as COVID-19 at-home testing kits.  

While it is uncertain how private payers will change coverage requirements and reimbursement polices when the PHE ends, they often follow Medicare’s lead on telehealth provisions so it is important for those outside the Medicare system to stay informed on policy updates.

Three pieces of current pending legislation may address certain concerns regarding the “telehealth cliff” and may afford telehealth providers a few concrete alternatives to pre-PHE health care practices.

  • The CONNECT for Health Act (H.R. 2903) led by Rep. Mike Thompson (CA-05) may extend Medicare’s type-of-provider waivers. 
  • The Senate Finance Committee, chaired by Senator Ron Wyden (D-OR) seeks to create concrete access by removing the “rural” geographical location requirement in the Telehealth Expansion Act of 2020 (S. 4230). 
  • The Telehealth Extension and Evaluation Act (S. 3593) may continue the current Medicare telehealth reimbursement waiver and allow practitioners to prescribe controlled substances via telehealth for two additional years beyond the PHE. 

The current PHE is scheduled to expire in mid-July; however, many pundits believe another 90-day extension to delay the PHE expiration to October 2022 is almost certain. In addition, they also predict the PHE is likely to continue until the end of the year, terminating in May 2023. While Congressional action could alleviate the uncertainty faced by telehealth providers, all potential consequences from the PHE expiration should be considered carefully while preparing for potential changes in coverage requirements and reimbursement. Providers should prepare for the future as if the PHE could expire at any time. 

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