How Telemedicine Requirements and Policies Will Change Post-Pandemic

The CARES Act: How the Pandemic Changed Telehealth Policy

Former U.S. Secretary of Health and Human Services Alex Azar declared a public health emergency on Jan. 31, 2020, in response to growing concerns over the spread of COVID-19. And on March 13, 2020, by Proclamation 9994, President Donald Trump declared a national emergency.

As a result of authority granted under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the Centers for Medicare & Medicaid Services (CMS) provided flexibility for Medicare telehealth services. It did this by broadening the waiver authority under section 1135 of the Social Security Act.

Before the declarations, providers were subject to CMS’ geographic and originating site requirements for telehealth reimbursement under Medicare. According to the requirements, the originating site is the patient’s location at the time telehealth services are received. Under Section 1834(m) of the Social Security Act, the originating site must be a physician’s office, skilled nursing facility or hospital. The patient must also be located within a Health Professional Shortage Area or in a county outside of any Metropolitan Statistical Area as defined by the U.S. Census Bureau.

“That meant an extremely small proportion of Medicare reimbursement was going toward telehealth, well under 1 percent,” says Kyle Zebley, vice president of public policy for the American Telemedicine Association (ATA).

Dr. Ezequiel Silva III, a radiologist with the South Texas Radiology Imaging Centers and a member of the American Medical Association’s Digital Medicine Payment Advisory Group, explains that the waivers also impacted licensure. Physicians enrolled in the Medicare program licensed in any state can provide telehealth services to people anywhere in the U.S. if the state allows it. Each state has its own telehealth policies.

The waivers also allowed physicians to practice from home since many offices were closed at the beginning of the pandemic, says Silva.

He adds that CMS’ Interim Final Rule expanded coverage of audio-only health services, which helped those without access to two-way audiovisual technology and those who weren’t comfortable using video telehealth.

Telehealth policies were put into place in 1997. While there’s been incremental expansion, the regulations haven’t kept up with changes in technology and what’s now possible in virtual care, says Zebley, who adds that if the pandemic hadn’t happened, the pace of telehealth adoption would have remained slow. However, he explains that the Medicare waivers had an extraordinary impact and led to an uptick in telehealth utilization.

“During the first quarter of 2020, the number of telehealth visits increased by 50 percent, compared with the same period in 2019, with a 154 percent increase in visits noted in surveillance week 13 in 2020, compared with the same period in 2019,” reads a CDC report released in October 2020.

“Laws hadn’t kept up with the way providers wanted to deliver care, so it was a game-changing moment,” says Zebley. “Ninety percent of Medicare beneficiaries are satisfied with their care, and two-thirds are very satisfied.”

HIPAA-Compliant Telehealth Requirements Likely to Return

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) enforces HIPAA requirements. It announced on March 17, 2020, that “OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”

Telehealth creates a unique challenge for HIPAA because a physician is no longer interfacing with a patient behind a closed clinic door, says Silva. Instead, information is transferred digitally, which requires different security precautions. Silva explains that while security requirements were reduced, OCR loosely defined which communication technologies could be used for telehealth. It also encouraged healthcare organizations to notify patients of privacy risks. AMA found this guidance to be appropriate, says Silva.

READ MORE: Find out why healthcare is focused on telehealth security.

However, it’s likely that HIPAA requirements will be reinstated once the public health emergency ends.

“The reinstatement of HIPAA requirements is inevitable, and healthcare organizations need to prepare accordingly. They need to have their regulatory and legal offices getting ready to follow the spirit and letter of the law,” says Zebley. “It’s very clear what HIPAA requires. If an organization is operating a telehealth platform or technology that’s not HIPAA compliant, I expect that it would need to be compliant perhaps in a few months’ time.”

The ATA supports the reinstatement of HIPAA requirements because it’s important to protect patient data, explains Zebley.

Will Telehealth Restrictions Return Post-Pandemic?

The public health emergency and telehealth waivers are still in place, but if the declaration ends before Congress or CMS acts, healthcare providers could hit a “telehealth cliff.”

“If that happens it’s going to be regressive,” says Zebley. “However, I’m extremely optimistic that Congress will act before the emergency ends.”

The public health emergency has been renewed approximately every 90 days since it was first declared, with the most recent renewal on July 20, 2021, by U.S. Secretary of Health and Human Services Xavier Becerra.

Silva says there’s been speculation that the public health emergency will last through the end of the calendar year. If it doesn’t, the previous Medicare telehealth requirements could go back into effect until CMS rule-making addresses the issue.

CMS released its 2022 Medicare Physician Fee Schedule Proposed Rule on July 19, 2021, which would extend the waivers on some telehealth services, especially those that address mental health, through the end of 2023. Comments are due on Sept. 17, 2021

“As CMS continues to evaluate the temporary expansion of telehealth services that were added to the telehealth list during the COVID-19 PHE, CMS is proposing to allow certain services added to the Medicare telehealth list to remain on the list to the end of Dec. 31, 2023, so that there is a glide path to evaluate whether the services should be permanently added to the telehealth list following the COVID-19 PHE,” reads the CMS fact sheet.

The CONNECT for Health Act of 2021, introduced in the U.S. Senate on April 29, 2021, aims to expand the use of telehealth by removing geographic requirements for telehealth services and expanding originating sites permanently. It’s one of several bills that could address the long-term expansion of telemedicine.

Organizations such as the ATA and AMA have been advocating for a permanent expansion of telehealth services on federal and state levels. AMA published a telehealth implementation playbook for those looking to implement telehealth. Silva says the healthcare industry needs to look at the data around patient experience and the value of telehealth to determine how to proceed with virtual care policy going forward.

Zebley encourages those who are concerned about the possible loss of telehealth flexibility to reach out to their elected officials.