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Telehealth Update:  New Bill Seeks to Understand the Impact of Telehealth During COVID-19 as State COVID-19 Orders Expire

As previously discussed, many of the telehealth flexibilities in place during the COVID-19 pandemic are set to expire at the end of the federal Public Health Emergency (PHE), unless federal and state legislators act to make the changes permanent.  A recent bill introduced by Representative Robin Kelly (D-IL) suggests that Congress is interested in expanding access to telehealth services for Medicare and Medicaid beneficiaries if the benefits of increased access to telehealth can be demonstrated.  According to a press release issued by Representative Kelly’s office, “Telehealth has the potential to help equalize healthcare access for underserved populations. However, we need data to understand utilization, cost, fraud, privacy and how to serve those left behind by the digital divide.”

The Evaluating Disparities and Outcomes of Telehealth During the COVID-19 Emergency Act of 2021 would require the Department of Health and Human Services (HHS) to study the impact of telehealth on utilization, cost, fraud, privacy, and access within the Medicare and Medicaid programs during the PHE, with a particular focus on telehealth access for underserved populations.  The resulting report would be required to address how all services under Medicare Parts A and B were used during the PHE, including the number of audio-visual versus audio-only visits.  The report would also have to include a summary comparing use patterns before and during the PHE for in-person outpatient visits, inpatient admissions, and emergency department visits.  Finally, HHS would have to analyze Medicare telehealth use, access, and outcomes during the PHE, broken down by race and ethnicity, geographic region and income level, as well as the providers’ zip codes.  An interim report would be due no later than one year after the end of the PHE.   

A report examining changes made to telehealth benefits under state Medicaid plans or waivers during the PHE and a summary of how Medicaid use patterns have changed would also be due a year after the end of the PHE.

Telehealth advocates have expressed support for the bill, as long as it is coupled with an extension of the existing telehealth flexibilities.  President Biden has indicated that the PHE will be extended through the end of 2021, but without Congressional action, many of the current telehealth flexibilities will expire when the PHE ends.  Several states’ public health emergencies have also expired, although some states have taken action to extend telehealth flexibilities beyond the PHE.  For example, on July 27, California’s Governor Newsom signed AB 133, which extends California’s temporary COVID-19 telehealth provisions through the end of 2022, ensuring payment parity for all telehealth modalities.  The status of telehealth flexibilities in other states is less straightforward.  For example, Alaska had begun phasing out its Medicaid telehealth flexibilities, but most of the temporary expansions remain in place due to a more recent declaration from the Commissioner of the Alaska Department of Health Services tying them to the PHE.

We will continue to track the status of the PHE, various state actions, and their impact on access to telehealth.   

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Cassandra L. Paolillo is Of Counsel 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.