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Senate HELP Committee Signals Support for Permanently Expanding Telehealth Access

Earlier this month, we wrote about what the future of telehealth might look like in a post-COVID-19 world.  In that post, we referenced comments made by CMS Administrator Seema Verma, in which she voiced her support for permanently expanding access to telehealth services.  In her comments, Administrator Verma said that CMS officials were looking at ways to expand access without having to wait for permanent legislation, but it seems as though Congress may be ready to act after all. 

Last week, the Senate Committee on Health, Education, Labor & Pensions (“Senate HELP”) held a hearing entitled “Telehealth:  Lessons from the COVID-19 Pandemic.”  Senate HELP Chairman Lamar Alexander (R-TN) cited the huge increase in the number of telehealth visits across the country as a result of the pandemic and urged Congress to act this year to make permanent some of the temporary federal telehealth changes.  Permanent expansion of access to telehealth could result in better outcomes, better patient experience, and lower costs, Sen. Alexander said.  Sen. Tina Smith (D-MN) also touted the importance of telehealth reimbursement for hospitals and other health care facilities that have been hit hard financially as a result of social distancing requirements. 

Of the more than 30 temporary federal policy changes that have aimed to increase access to telehealth services during the public health emergency, Sen. Lamar specifically highlighted three: 

  1. Relaxation of the Medicare originating site requirement, which allows physicians to be reimbursed for telehealth services regardless of where the patient is located;
  2. Expansion of the number of telehealth services that are covered under Medicare; and
  3. The relaxation of HIPAA requirements to allow for the use of non-HIPAA compliant technology for the provision of telehealth services. 

Sen. Alexander advocated for making the first two policy changes permanent but cautioned that the changes under HIPAA need to be reviewed more carefully in order to ensure protection of patient privacy.  Sen. Alexander also raised the importance of carefully reviewing the other temporary federal policies to determine which should be made permanent. 

While Senate HELP was generally supportive of the permanent expansion of policies to increase access to telehealth, Committee members cited certain obstacles that need to be overcome in order to achieve widespread adoption.  Specifically, Sen. Alexander and Sen. Smith cited the lack of access to reliable internet as a major concern, especially for patients in rural areas and low-income urban areas.  Sen. Smith highlighted the disproportionate effect that COVID-19 has had on Black communities and cautioned that expansion of telehealth without also addressing the “digital divide” could lead to even greater health disparities.  Policy changes that allow for audio-only, telephone based telehealth visits have helped address this issue, she said.    

Sen. Alexander acknowledged that Congress’s ability to expand access to telehealth is somewhat limited but cited temporary and permanent policy changes by state governments and in the private sector.  Specifically, he noted the expansion of coverage of telehealth services by some private payors, a move that opens up telehealth services to an even broader population.  Sen. Alexander concluded his opening remarks by saying, “Even with an event as significant as COVID-19, memories fade and attention moves quickly to the next crisis, so it is important for Congress to act on legislation this year. Because of this 10 years of telehealth experience crammed into 3 months—patients, doctors, nurses, therapists, and caregivers can write some new rules of the road, and we should do so while the experiences still are fresh on our minds.” 

Permanent changes to Medicare reimbursement requirements and the HIPAA rules are not enough to ensure that telehealth remains widely available to patients and providers once this public health emergency is over.  State boards of medicine and other professional licensing boards also need to make permanent the temporary changes to state licensing requirements and professional practice standards that were put into place as a part of state public health emergency orders.  We will continue to provide updates on telehealth policy at the federal and state level, so continue to check back here for more information. 

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Authors

Cassandra L. Paolillo is an Associate at Mintz whose practice involves advising health care clients on transactional and regulatory matters, including mergers and acquisitions, regulatory compliance, and general contracting. Cassie primarily works with providers and payors.
Ellen L. Janos uses her in-depth knowledge of health care regulations to help Mintz clients with government investigations, financial transactions, and corporate compliance activities. She also advises traditional health care providers, investors, and start-ups on telehealth initiatives.