Telehealth advocates are homing in on the next big challenge to solidify virtual care's gains during the COVID-19 pandemic: urging congressional action.
"That's really our No. 1 federal priority," said Kyle Zebley, director of public policy at the American Telemedicine Association.
The latest Medicare physician fee schedule, released earlier this week, offers a powerful step forward for telehealth by adding more than 60 services to the list of telehealth services that Medicare will pay for in 2021. But experts noted that without new legislation, CMS' efforts to expand video-based telehealth will continue to be stifled by restrictions outside the agency's control.
Once the COVID-19 public health emergency period comes to an end, Medicare's list of covered telehealth services will only apply to patients living in rural areas and largely won't allow patients to continue accessing telehealth from home, due to restrictions in the Social Security Act.
"The greatest limitation on the expansion of telehealth is these originating site restrictions," said Sean Cavanaugh, chief policy officer and chief commercial officer at Aledade, which partners with primary-care physician practices to form accountable care organizations.
"But as CMS acknowledged in the rule, they don't have the authority outside of the public health emergency to waive that," Cavanaugh said.
Expanding Medicare coverage for a broader range of telehealth services is the main area in which CMS has jurisdiction, but CMS Administrator Seema Verma on a call with reporters stressed that Congress needs to change federal law to permanently allow a broader swath of the Medicare population to receive such telehealth services at home.
"Really, the most significant change in (the physician fee schedule rule) isn't the change that happened—it's the acknowledgement of where Congress needs to come in," said Ryan Bailey, a vice president at healthcare consultancy Advis. "We're going to need at least one piece of congressional activity that's going to push (the expansion of telehealth) over the finish line."
Lawmakers in the early days of the COVID-19 pandemic allowed Medicare to pay providers for telehealth services regardless of where a patient was located for the duration of the emergency period, waiving the requirements CMS usually has to follow. Under the Social Security Act, a patient typically has to be at a healthcare facility in a rural area to receive telehealth services.
But those requirements will go back into effect at the end of the emergency period, unless Congress intervenes.
"CMS' hands are tied," said Jacob Harper, an attorney in law firm Morgan Lewis' healthcare practice. "Unless Congress takes action, there's certain things that (CMS) simply can't get around … they've gone as far as they reasonably can."
Dozens of bipartisan bills related to telehealth have been introduced during the pandemic, including some that have proposed removing originating site requirements to make it easier for Medicare beneficiaries to receive care at home.
However, some lawmakers have stressed the need to continue studying the quality and cost of virtual visits, gathering data on how telehealth has been used during the pandemic and evaluating concerns related to fraud and program integrity, before making legislative changes.
Emerging research from the public and private sectors could prove helpful for that.
Verma on Tuesday said that CMS will commission a study of telehealth flexibilities promulgated during the COVID-19 emergency to determine the safety, quality and cost of remote patient monitoring and virtual physician supervision. Groups like the Alliance for Connected Care also have been urging providers to share data on telehealth use during COVID-19.
The 2021 physician fee schedule builds on an executive order President Donald Trump issued in August, calling for CMS to make COVID-19 telehealth flexibilities permanent.
Telehealth advocates largely have praised the Trump administration for its work to expand virtual care, an effort that industry watchers expect to continue under a Biden administration.
"We have allies in the White House on either side of Inauguration Day," Zebley said.
The Trump administration has done "all they can within reason, within the law, to offer telehealth services to Medicare beneficiaries," he continued. "I also am strongly of the belief that if Joe Biden got a good telehealth bill on his desk, he would sign it into law, too."
CMS releases an updated physician fee schedule—the list of fee maximums that Medicare uses to reimburse healthcare providers for various services—each year. The latest rule released Tuesday permanently allows Medicare providers to use telehealth to carry out home visits for so-called evaluation and management services and some visits for people with cognitive impairments.
The rule also created a new category of telehealth services, which Medicare will cover on a temporary basis. Telehealth services that were added during the COVID-19 pandemic, such as for emergency department visits, will remain covered through the calendar year in which the public health emergency period ends—with an eye toward making them permanent as CMS gathers more data on outcomes and cost.
"The expansion of telehealth happened rapidly," Bailey said. Despite general support for telehealth, CMS officials "want to see the utilization data, they want to see the cost data, they want to see providers make the case that they need it" before deciding whether to permanently pay for a service.