RxLegal: The Evolving Legal Landscape of Telehealth

Abstract

The provision of telehealth services has increased dramatically during the COVID-19 pandemic with the introduction of various temporary waivers and rules designed to increase flexibility in the pandemic response. This expansion of telehealth has not only increased patient access, but protected essential healthcare workers from potential virus exposure. The advantages of increased telehealth services has prompted the introduction of a bipartisan bill in Congress, which seeks to make some of the temporary measures undertaken during the pandemic permanent. Pharmacists have been able to expand telehealth services further with the implementation of these regulatory changes.

Per an American College of Clinical Pharmacy (ACCP) White Paper, telehealth is defined as the “use of technology to deliver health care, health information, or health education at a distance” telephonically, via video conferencing in real-time, streaming media, or store-and-forward imaging. ¹ Historically, the provision of telehealth services has been considered an alternative to face-to-face healthcare delivery methods, primarily for patients with barriers or reduced access to care. With the advent of the COVID-19 pandemic, the Trump administration has issued numerous temporary healthcare regulatory waivers and rules in order to increase flexibility in the pandemic response. ² Many of the temporary changes have impacted Medicare telehealth, and subsequently private payer telehealth services, and allow for:

• Reimbursement of telehealth visits, virtual check-ins, and e-visits for new and established patients.

• Potential expansion of appropriate telehealth services to the official list of services payable under the Medicare Physician Fee Schedule (https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes).

• An expanding range of healthcare providers (eg, occupational therapists, clinical psychologists, physical therapists, speech language pathologists, etc.) to deliver services to Medicare recipients.

• Flexibility for healthcare providers to reduce or waive cost-sharing for telehealth visits.

• Medicare beneficiaries to receive telehealth services outside of traditional designated rural areas and without the requirement to go to a clinic, hospital, or other medical facility (ie, the originating site) to receive the service.

• The use of audio only equipment to furnish certain services (ie, temporary elimination of a video technology requirement).

• Removal of visit frequency limitations for specified telehealth services.

• Physicians to provide “virtual supervision” of auxiliary personnel involved in the provision of telehealth services instead of direct in-person supervision.

The temporary expansion of telehealth services during COVID-19 has not only increased patient access, but has resulted in a reduction in essential healthcare worker exposure to ill persons, preservation of the availability of personal protective equipment, and lessening of the impact of patient surges on facilities. ³ The many advantages of increased telehealth services has resulted in the recent introduction of a bipartisan bill, Protecting Access to Post-COVID-19 Telehealth Act of 2020, in Congress. ⁴ This bill aims to protect providers and patients who have benefited from telehealth during the pandemic by permanently instituting many of the temporary measures undertaken during the pandemic. Specifically, this Act would:

• Eliminate pre-pandemic requirements that eligible Medicare telehealth beneficiaries be located in a designated rural area and that patients receive telehealth care only at a specific originating site.

• Establish a patient’s home as an eligible site for receiving telehealth care and for a qualified provider to be reimbursed for services at this site.

• Authorize the Centers for Medicare and Medicaid Services to continue reimbursement for telehealth services for 90 days beyond the end of the COVID-19 pandemic emergency.

• Enable the Department of Healthcare and Human Services to expand Medicare telehealth during all future emergencies and disasters.

• Require the completion of a study evaluating the outcomes, costs, uptake, and any disparities observed with the expansion of telehealth during the pandemic.

Unfortunately, the implementation of COVID era waivers and rules, as well as the proposed new federal legislation, does not significantly overhaul the official status of pharmacists. Pharmacists continue to be unrecognized as “qualified providers” under Medicare. Therefore, pharmacists remain “auxiliary staff”, can only deliver telehealth services incident to a Medicare-eligible provider, and are unable to bill Medicare directly for services. ⁵ However, this does not dampen the potential opportunities for expansion of pharmacist-provided telehealth services under the virtual supervision of physicians and many healthcare institutions have moved forward with increasing patient access to comprehensive medication management services provided via telehealth during the pandemic. ⁶ In these situations, payment for services would be made to the billing practitioner, who would then make the appropriate payment to the pharmacist under the terms of an agreed upon financial arrangement. Additionally, many private payers have expanded coverage of telehealth services and certain states have parity laws that mandate private payer reimbursement for telemedicine services similarly to an in-person visit. ⁷

In summary, the provision of telehealth services by numerous healthcare providers, including pharmacists, has expanded dramatically during the COVID-19 pandemic due to the issuance of various waivers and rules by the federal government. The recent introduction of bipartisan federal legislation in Congress may enshrine some of these temporary measures into permanence. Although pharmacists are not currently “qualified providers” under Medicare, pharmacists may work with Medicaid-eligible providers to deliver and expand appropriate telehealth services.