Mar 01st 2021

Telehealth Regulations: What's Next?

The coronavirus pandemic catapulted telehealth from a relatively uncommon practice to an indispensable healthcare service. In 2020, 41.7 million American adults used telemedicine — a 98.8% increase from the year prior. eMarketer projects that number will further increase to 64 million Americans using telemedicine by the end of 2023.

Telehealth is likely here to stayand expect more government regulations to follow in the wake of its increasing popularity.

Telehealth today


Many of the regulations related to telehealth have been paused or eased in response to the COVID-19 national public health emergency (PHE). That's true both at the state level and at the federal level, where telemedicine restrictions have been eased for Medicare participantsThe U.S. Department of Health and Human Services (HHS) has called for “enforcement discretion" of HIPAA privacy policies, and the U.S. Drug Enforcement Administration loosened constraints on prescribing controlled substances electronically.

In addition, the Coronavirus Aid, Relief, and Economic Security (CARES) Act provided funding to the Telehealth Network Grant Program (TNGP) to support technology access in rural and medically underserved areas.

While progress has been made to streamline access to virtual visits and prescriptions, there are several aspects of telehealth that are ripe for improvement. Here are four elements that need to be addressed:

1. Complete coverage for telehealth

Many states have enacted varying telemedicine parity laws. First, there are service parity laws that require state-regulated private plans to cover telemedicine services deemed medically necessary. There are also payment parity laws, which require the reimbursement of telehealth services at the same rate as in-person services—but fewer states have put those in place.

In terms of health plans on the private market, the Center for Connected Health Policy (CCHP) reported in the fall of 2020 that 43 states and the District of Columbia have laws on private payer reimbursement of telehealth. Not all of them require reimbursement equal to in-person coverage; most only stipulate service parity, not payment parity.

Many commercial insurers have reduced or eliminated cost-sharing, expanded telemedicine coverage, and added in-network telemedicine providers, the Peterson-KFF tracker reported.

2. Appropriate technology and access

Access to computers and internet connectivity remains an issue. “It remains unclear if the U.S. will sustain this expanded use of telemedicine after the state of emergency ends, and to what extent low-income patients and patients with limited experience with or access to technology will be able to access these services," the Kaiser Family Foundation (KFF) notedSignificant disparities also exist in terms of broadband internet access in terms of education, age, income, and race.

To tackle the problem of technology access, TNGP will offer $29 million in grants each fiscal year through 2025. In January 2021, the HHS also gave $8 million to support the Telehealth Broadband Pilot (TBP) program, which evaluates broadband capacity in rural areas.

3. Licensing requirements

Licensing regulations determine whether doctors can see patients outside of their state. Typically, providers must obtain a license in each state where their patients reside. Nearly all states have relaxed their rules due to COVID-19, but it remains to be seen what happens after the PHE ends.

In early February 2021, Rep. Ted Budd and Senator Ted Cruz reintroduced a bill to remove state license restrictions. The measure was previously shot down in committee.

4. Prevent cyber fraud

To combat fraud and cybersecurity issues, we need regulations to effectively govern the safety of telemedicine platforms and practices.

In September 2020, the Department of Justice announced that 345 people were charged with allegedly submitting more than $6 billion in false and fraudulent claims to federal healthcare programs and to private payers. A huge portion — $4.5 billion — was linked to telemedicine. As part of the scheme, telemedicine executives allegedly paid doctors and nurses to order genetic and diagnostic testing, pain medication, and durable medical equipment.

Telehealth is also vulnerable to cyberattacks, just like other online activities.

Regulations and laws on the horizon


The Protecting Access to Post-COVID-19 Telehealth Act of 2021 is one recently introduced law that seeks to regulate telehealth. It would:

·       Eliminate most Medicare geographic restrictions

·       Extend Medicare and Medicaid reimbursement for telehealth by 90 days after the PHE ends

·       Give HHS power to expand Medicare telehealth for any future emergencies

·       Study the use of telehealth during the coronavirus pandemic.

The legislation would only apply to Medicare and Medicaid programs, and not cover parity or technology and cybersecurity issues. In December 2020, the Centers for Medicare and Medicaid Services (CMS) also announced efforts to make 60 of the 144 newly offered telehealth services permanent (remain in place after the PHE ends). In addition, audits of some pandemic telehealth practices are included in the 2021 Office of the Inspector General work plan.


Impact on private health plans


If temporary telehealth practices are made permanent, it will shift private payer reimbursement, a CCHP report suggests. The developments have "presented private payers with a unique opportunity to reassess their telehealth coverage policies in light of utilization trends and consumer preferences prompted by COVID-19," the report said.

But ultimately, the most important question around the use of telehealth may not be whether it should be used, but when and how. The key challenge for adopting telehealth going forward is optimizing its use, panelists argued in a webinar on the future of telehealth, hosted by the American Medical Association.

To stay up on the latest telehealth regulatory developments, visit the CCHP's database of telehealth rules by state and their state regulation tracker.