• Shelley Carder

MedPAC Presents Telehealth Recommendations to Congress

A potential silver lining from the COVID-19 public health emergency (PHE) may be enhanced acceptance of Telehealth. The federal government, CMS and California all helped to expand coverage for telehealth services during the PHE. In addition to permitting visits to occur in more areas, such as patient homes, acceptable technology was expanded to permit use of phone and existing apps. Significantly, there was also mandates that payment for telehealth visits be covered on parity with other types of visits. Those are just some of the efforts intended to provide flexibility to increase patient access to care and to reduce the risk of exposure to COVID-19 for both patients and providers. Telehealth has been rapidly adopted over the past year by healthcare providers and patients.

Throughout the past year, there have been many questions about the use of telehealth. Questions came to attorneys from physicians such as whether waivers issued by the government which stated physicians would not face unprofessional conduct charges for failing to document informed consent meant that physicians could, or should, disregard obtaining informed consent for the use of telehealth. We were asked if there were waivers for certain HIPAA rules, could the physicians ignore privacy issues. Physicians who wanted to serve their patients who sequestered in other states sought clarification as to why attorneys cautioned using telehealth under such circumstances, unless the physician was licensed in the state in which the patient presented. Attorneys were called to consistently remind healthcare providers that the applicable standards of care were not waived by any government and should be followed.

Despite the limitations, most would agree that the use of telehealth has significantly expanded over the past year. Without legislative action, these telehealth changes will expire at the end of the PHE.

In March 2021, the Medicare Payment Advisory Commission (MedPAC) presented a Report to Congress which, in part, addressed the continued use of telehealth. Some of the salient points of the telehealth chapter include:

· There is a need to continue to collect data and further study how telehealth affects the delivery of healthcare. This point is supported by the American Hospital Association which also urges CMS hold off on long-term policy recommendations to allow for more study.

  • There is question whether the use of specific platforms are beneficial. In particular, the use of audio-only services is so new that there is very little evidence to establish whether it reduces costs or improves quality or outcomes.

  • Accordingly, MedPAC recommends extending some of the emergency rules for telehealth access and coverage for a few years after the coronavirus pandemic ends which will afford a larger data set to study these questions.

  • However, MedPAC does not recommend continued reimbursement for all services. Instead, it advises that CMS should continue to temporarily cover select services that the agency determines have the potential for clinical benefit, writing:

“We favor this approach instead of permanently covering all of the telehealth services that are temporarily covered during the PHE. After a period of time, policymakers should use information gathered during the temporary period of coverage to consider permanently covering the additional telehealth services based on the principles of access, quality, and cost.”

  • MedPAC does not favor complete parity of coverage, offering the following:

“We expect the rates for telehealth services to be lower than rates for in-person services because services delivered via telehealth likely do not require the same practice costs as services provided in a physical office. . . Although telehealth may require upfront investments in technology and training, in the long run the marginal cost of a telehealth service should be lower than that of an in-person service. Therefore, continuing to set rates for telehealth services equal to rates for in-office services after the PHE ends could distort prices and lead clinicians to favor telehealth services over comparable in-person services, even when an in-person service may be more clinically appropriate.”

  • In addition, MedPAC cites changes needed to assure safeguards to protect Medicare and its beneficiaries from unnecessary spending and fraud. Specifically, it recommends:

  • the discontinuation of allowing providers to reduce or waive cost-sharing for telehealth services.

  • Additional scrutiny of outlier clinicians who bill many more telehealth services per beneficiary than other clinicians, or those who bill for a high number of services in a week or a month;

  • Require clinicians to provide an in-person, face-to-face visit with a beneficiary, at least before they order expensive durable medical equipment (DME) or expensive clinical laboratory tests; and

  • prohibit ‘incident to’ billing for telehealth services provided by any clinician who can bill Medicare directly.”

Although the Biden administration suggests it will maintain the PHE declaration through the end of 2021, it is not too early to start gathering data to support the positive benefits of telehealth and to advocate for those rules which are beneficial to patients and to providers.

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