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The Omnibus and the Future of Telehealth


The Omnibus: Telehealth Provisions

Now that President Biden has signed the $1.5 trillion omnibus spending package, averting a government shutdown, we can focus on some of the healthcare provisions included in the package; specifically, the provisions concerning the extension of Medicare telehealth waivers across the country.


Universal Medicare reimbursement for telehealth services is a relatively recent phenomenon, and one that only came into existence in its current form afterCOVID-19 was first declared a Public Health Emergency (PHE) on January 31,2020. After the PHE was established, the Secretary of the Department of Health and Human Services (HHS) was granted the authority to waive or modify certain healthcare regulatory requirements nationwide that had previously made serving patients virtually on a large scale untenable.

In March 2020, many safeguard provisions were waived, authorizing Medicare to reimburse providers for telehealth visits at the same rates as corresponding hospital or office visits, and removing in-person requirements for certain medical services. This greatly expanded Medicare beneficiaries’ access to these services and allowed providers to adapt to increasing demand and keep many patients out of overcrowded hospitals as possible during the worst of the crisis.

Until this Omnibus was signed, these telehealth waivers were tied directly to the PHE and would cease to exist when the PHE expires, which is currently April 16, 2022. It is expected that the PHE will be extended at least another 90 days to July 15,2022.

How Does the Omnibus Affect Telehealth Waivers?

Barring an unforeseen change of course in COVID-19 cases and deaths in the United States, it is unlikely that the current PHE will last much longer, especially as the virus appears to be entering its endemic phase and Democrats prepare for what promises to be a contentious 2022 midterm election cycle.

Congressional advocates of these telehealth waivers seemed to have taken notice of this reality and negotiated the inclusion of provisions in the Omnibus law that would extend the waivers for 151 additional days after the PHE ends. The PHE is likely to be extended by the Biden Administration at least once more into July, meaning, if Congress allows these waivers to expire, they would last until December 13, 2022.

Below, we have compiled a near-exhaustive list of the telehealth provisions covered by the five month extension of these waivers:

Originating Site, Geographic, and Provider Restrictions

- Eliminates Medicare geographic restrictions, which required that patients be in rural areas or areas of provider shortage.

- Expands the definition of originating sites, allowing patients to use telehealth in their homes.

- Allows federally qualified health centers and rural health clinics to continue offering telehealth services.

- Allows occupational therapists, physical therapists, speech therapists, and audiologists to continue performing telehealth services.

Audio-Only Telehealth Use

- Grants the use of audio-only visits, allowing patients without access to broadband or video devices to utilize telehealth.

Mental Health Visits

- Postpones the requirement for an in-person visit within six months of a patient receiving mental health services through telehealth.

Medicare Payment Advisory Commission (MedPAC)Study

- Requires MedPAC to conduct a study analyzing telehealth use, impacts, and expenditures under the Medicare program and report findings to Congress by June 2023.

Collectivization and Publication of CMS Telehealth Data  

- Requires CMS topost quarterly Medicare claims data for telehealth services beginning in July 2022.

Benefits of Telehealth and Barriers to Permanent Extension

It should be noted that a 151 day extension is far from a permanent one, and allowing these waivers, which have proven essential for continuous patient access to care during the crisis, to expire may have severe negative consequences for the industry and for rural patients in particular.

Before the PHE, Medicare covered telehealth on a limited basis for beneficiaries in designated rural areas and areas with provider shortages. From March 2020 to February 2021, over 28 million Medicare beneficiaries utilized telehealth services, compared to only 910,490 from March 2019 to February 2020. This massive increase demonstrates that permanent, sustained telehealth usage could be a potent weapon in combatting the increased patient demand for healthcare services nationwide and shortages in the healthcare workforce, and could also facilitate and improve access to mental health access for beneficiaries.

The main barrier to implementing permanent waivers is simply the price tag; experts estimate an indefinite extension would cost about $75 billion over a 10 year period. Another barrier is the consideration of what guardrails to implement in the authorization, as critics have argued that virtual appointments may be more susceptible to fraud and abuse than in-person visits, and lawmakers must be careful to implement these protections without making them overly burdensome to providers. Patient access to telehealth programs is also a concern, with issues surrounding the lack of access to strong broadband connections, a lack of patient education on how to utilize the virtual visit technology, and a lack of access to the technology itself.

State Impacts

Some states have taken it upon themselves to pass measures that would continue telehealth reimbursement without the need for federal action, should these waivers expire after the 151 day extension. For example, many have implemented mandates to permanently extend payment parity, which requires that healthcare providers are reimbursed equally for telehealth and in-person visits. These actions, however, would not allow for Medicare reimbursement of telehealth services. As of February 2022, 19 states have implemented policies requiring payment parity, four states have parity in place with certain restrictions, and 27 states lack payment parity.

JD Supra
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