Telehealth reform post–public health emergency: crucial next steps

Abstract

As the pandemic made it unsafe for providers and patients to meet in person, the US government implemented key temporary telehealth waivers in March 2020 that expanded Medicare telehealth coverage dramatically. Some of the most significant changes included the removal of location restrictions so that patients and providers could engage in telehealth from their homes, full provider reimbursement for telehealth visits, coverage for more medical specialties and types of practitioners such as occupational and physical therapists, and the allowance of telehealth prescription of controlled substances. The waivers will end when the government removes the federal status of a public health emergency, which is expected to occur in 2023. Nearly 64 million Medicare patients are at risk of losing most modalities of telehealth access. We present current legislation that could combat this “telehealth cliff” and defend the position that Medicare telehealth access should remain permanently expanded.

The US healthcare system was faced with an incredible challenge at the beginning of the COVID-19 public health emergency (PHE) as the number of infections grew exponentially. It was apparent that in-person appointments carried health risks as patients and providers alike could be exposed to COVID-19, prompting the consideration for more telehealth incorporation. However, telehealth infrastructure was insufficient for such a sudden increase in usage, and numerous legal restrictions stood in the way of mass expansion.¹ This led the US government to implement key telehealth waivers in March 2020 under Section 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act.²

Under these waivers, the Centers for Medicare and Medicaid Services (CMS) immediately expanded Medicare telehealth coverage dramatically. By the end of 2020, 52.7 million Medicare fee-for-service telehealth visits were performed, a 63-fold increase from 2019.³ Arguably the most impactful change that led to this increase was altering the location requirements for the patient. Before the PHE, the originating site (the patient’s physical location during the telehealth appointment) had to be at a preapproved facility such as select health centers. The PHE expansion temporarily redefined the originating site to any site in the United States, “including the home of an individual.”³ In addition to allowing patients to video call from home, audio-only phone calls were also temporarily instituted.³ By suspending the video platform requirement and allowing audio-only phone calls, a new lifeline was given to patients without access to broadband internet.

The list of covered practitioners for telehealth, which previously included only physicians, nurse practitioners, and physician assistants, was expanded to include speech language pathologists, audiologists, occupational therapists, and physical therapists.⁴ Telehealth mental health services formerly required an in-person evaluation, but temporary waivers allowed Medicare patients to receive initial evaluations and all follow-ups via telehealth. Medicare-accepting physicians were allowed to initiate telehealth visits from home instead of federally qualified health centers and rural health centers.⁴

The aforementioned changes occurred under temporary waivers with the specification that they would end when the government removes the federal status of a PHE. The Consolidated Appropriations Act of 2022 reinforced these waivers, but added a crucial buffer: a 151-day grace period from the ending of the PHE to the day that the waivers would be revoked.⁵ This move was applauded since it gives healthcare organizations and patients alike extra time to prepare for their new normal. Dishearteningly, however, the same outcome still looms at the end of the 151-day buffer.

CMS’s Medicare Current Beneficiary Survey sheds light on why patients may be unable to physically present to the clinic. They estimate that 19.4% of Medicare patients do not live in proximity to a metropolitan area, limiting their ability to visit specialty providers.⁶ An estimated 41% lived on an annual income of <$24,980 in 2019.⁶ Some financially disadvantaged patients may be unable to miss work to travel to a provider or lack consistent transportation. Another eye-opening estimate is that 49% of Medicare patients live with at least one disability that interferes with activities of daily living.⁶ Such disabilities can significantly hinder a patient’s ability to attend in-person visits. CMS’s own data provide a striking reminder that many disadvantaged patients stand to lose access to healthcare completely if the emergency telehealth expansion comes to an end.

The US Department of Health and Human Services (HHS) first instituted the PHE determination on January 27, 2020. It is currently set to end on January 11, 2023, though Secretary Becerra is expected to extend the PHE for another 90 days through April 11, 2023.⁷ If that proves to be the final extension, then the 151-day countdown will begin until nearly 64 million Medicare patients will lose access to most modalities of telehealth.⁸ In hopes of averting this “telehealth cliff,” congressional legislation was prioritized in the House of Representatives in the summer of 2022, with the creation of House Bill H.R. 4040. This bill extends the telehealth waivers and flexibilities through December 31, 2024, regardless of whether the HHS ends the PHE.⁹ This bill passed in the House and now awaits its fate in the Senate in 2023. This could extend the safety net for over 2 more years for many at-risk patient populations.

As beneficial as this bill may be, room for improvement remains. The most glaring issue is the lack of permanency beyond the end of 2024. Each of these temporary changes has increased access to healthcare for at-risk Medicare patients and should be made permanent. The second issue that needs attention is the lack of new and additional provisions that should be promoted as part of legislation.

The most important temporary waiver that ought to be permanently instituted is the removal of federal Medicare restrictions on physician and nonphysician provider and patient locations. Note that this refers to the location of the patient and provider in the same state; the right to perform interstate appointments is an entirely different act which is governed by the states, not the federal Medicare program. One of the steps that was necessary in making all same-state locations temporarily permissible in 2020 was the Notification of Enforcement Discretion from the HHS Office of Civil Rights. This notification clarified that “covered health care providers will not be subject to penalties for violations of the HIPAA Privacy, Security, and Breach Notification Rules that occur in the good faith provision of telehealth.”¹⁰ This security for providers was necessary because performing telehealth in unregulated locations increases the breach risk of protected health information (PHI). It was recommended that every possible measure still be taken to reduce the compromise of PHI, but the federal government recognized how crucial it was to still keep lines of patient care open.¹⁰ The HHS already set the stage for what it looks like when providers are offered protection for breach of PHI via telemedicine that occurs in good faith during the pandemic; however, it is now up to legislators to permanently codify these measures. The US Congress should make this a permanent option via legislation that delineates acceptable scenarios in which telehealth can be performed from more patient-inclusive locations. Such legislation may necessitate providing willing patients with forms that they can sign at their own discretion to release the provider, institution, and video platform from liability if the patient chooses an unregulated location. This gives patients capacity in their own care and ensures that we will not abandon patients after PHE. During the pandemic, most medical professional liability insurance companies provided coverage for telemedicine as long as it complied with federal and state regulations;¹¹ thus, the power for change is in the hands of our lawmakers. The PHE may end soon, but patients’ barriers to healthcare remain, and we must remove Medicare restrictions on telehealth locations to ensure broad access to care and legal protection during good faith practice.

A new provision that should be considered and instituted permanently is the federal empowerment of Medicare providers to continue to prescribe medically indicated controlled substances to select patients via telehealth. This has been legal during the PHE due to a temporary exemption made by the Drug Enforcement Administration but would not be extended based on H.R. 4040.¹² The Centers for Disease Control and Prevention reported a 31.5% increase in fatal drug overdoses from March 2020 through March 2021, predominantly from opioids.¹³ Fortunately, the Drug Enforcement Administration’s exemption allowed providers to begin prescribing buprenorphine via telemedicine to treat opioid use disorder. Studies show that buprenorphine diversion is mostly correlated with lack of access to a prescriber rather than desire for abuse. A 2018 study of 175 subjects who acquired buprenorphine illicitly found that 79% of them did so to treat their own withdrawal symptoms and 81% would have gotten their own prescription if available.¹⁴ If the controlled substances extensions are lost in the coming months, a population that already lacks sufficient access to lifesaving buprenorphine will likely see an increase in both fatal overdoses and illicit acquisition of buprenorphine, just like what happened when the PHE began. Permanent amendments must be made to ensure providers can prescribe medically indicated controlled substances via telemedicine so that our most vulnerable populations can have a fighting chance. Buprenorphine can serve as the gold standard for the importance of such an amendment, paving the way for other prescriptions to be considered as well.

If restrictions are put in place, those who are nonambulatory, are financially disadvantaged, lack transportation, or live in rural areas would struggle to attend their appointments, making the feared “telehealth cliff” a reality. We can overcome barriers to care by literally meeting patients right where they are. Telehealth is already a flourishing niche that is ready to care for our most marginalized patients; it simply needs to be freed of the shackles of arbitrary laws. The HHS notes that 92% of the 52.7 million Medicare telehealth visits in 2020 were initiated from the patient’s home, which could not have taken place before the PHE waivers.³ Whether H.R. 4040 is amended with the changes listed here or another bill is introduced in the future, it is imperative that further legislation is pursued so that this readily accessible technology can permanently bridge the gap for Medicare patients.

Disclosure statement/Funding

The authors report no funding or conflicts of interest.