Since the coronavirus pandemic, access to telehealth has increased dramatically. The expansion of telehealth availability has led to improved access to medical care for communities that previously had limited access to healthcare. However, the expansion of access may be threatened if policymakers fail to make emergency access provisions permanent. The proposed expansion of emergency telehealth rules and policies is discussed below.

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On June 15, 29 Senators sent a letter to Congressional leadership urging them to make emergency telehealth provisions permanent. The letter states, “Americans have benefited significantly from this expansion of telehealth and have come to rely on its availability. Congress should expand access to telehealth services on a permanent basis so that telehealth remains an option for all Medicare beneficiaries both now and after the pandemic. Doing so would assure patients that their care will not be interrupted when the pandemic ends. It would also provide certainty to health care providers that the costs to prepare for and use telehealth would be a sound long-term investment.”

Telehealth Rules: Expansion of Telehealth Availability 

Many advocates behind the expansion of telehealth access argue that it will not only increase accessibility to healthcare, it will also improve the quality of care. Before the pandemic, access to telehealth was limited, especially for Medicare patients. Previous to the emergency telehealth protocols released during the COVID-19 pandemic, CMS reimbursement for telehealth patients was based on the patient’s geographical location, limiting reimbursement for telehealth to patients based on where they live. 

The emergency telehealth rules temporarily eased restrictions, enabling increased access to telehealth for patients that, under normal circumstances, were not eligible to receive care virtually. CMS is willing to adapt telehealth guidelines to permanently increase access, however, Congress will have to pass legislation to make this possible.

Telehealth Rules: Other Considerations

There are several considerations that must come into play when determining the new telehealth rules. 

HIPAA, Data Privacy and Security: During the COVID crisis, the Department of Health and Human Services (HHS) temporarily eased restrictions on HIPAA violation enforcement for providers offering telehealth services in “good faith.” These restrictions specifically applied to the use of non-public telecommunications platforms. To improve access to telehealth during the crisis, non-public telecommunication platforms that are not HIPAA compliant, were permitted to be used on a temporary basis.

However, providers wishing to continue to use telehealth to treat patients must cease use of non-HIPAA compliant platforms. HIPAA compliant telecommunications platforms must have the proper security measures in place to secure protected health information (PHI). These measures include administrative and technical safeguards to ensure the confidentiality, integrity, and availability of PHI. The platform must also be willing to sign a business associate agreement (BAA).

State Licensure Barriers: A major barrier to telehealth is state licensure laws that prevent providers from treating patients across state lines. Nadia de la Houssaye, a partner with the Jones Walker law firm recommends, “Congress could re-visit the TELE-MED Act of 2015, which would permit Medicare providers who are licensed in one state to provide telehealth services to Medicare patients across state lines and without the need for additional state licenses.” 

ATA Recommendations: In a separate letter to Congressional leadership, the American Telemedicine Association (ATA) made the following recommendations:

    1. Expand the Federal Communications Commission’s $200 million COVID-19 Telehealth Program to include for-profit hospitals and health systems and others not included in the pool, and add another $300 million to the pot.
    2. Expand the FCC’s Health Care Connect Fund Program to include public, non-profit entities.
    3. Increase funding for the Health and Human Services Department’s Public Health and Social Services Emergency Fund.
    4. Provide a payroll tax credit for COVID-19 hospital facility expenditures, which often include the purchase of telemedicine equipment and additional telehealth training.
    5. Amend Medicare Part B cost sharing to increase flexibility for telehealth use.
    6. Have HHS forge an agreement with at least one eligible organization to collect, analyze and report on telehealth, digital health and remote patient monitoring metrics. That group should partner with stakeholders to analyze utilization, cost, access, experience data and identified structural and policy barriers to care.
    7. Incorporate telehealth and RPM platforms into the National Health Security Strategy.
    8. Prioritize telehealth policy and elevate the Office for the Advancement of Telehealth, which is currently categorized under the Office of Rural Health Policy in the Health Resources and Services Administration.
    9. Address outdated 1834(m) restrictions on telehealth, perhaps by enacting the CONNECT Act for Health (S.2741 and HR.4932).

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