by James Hughes, WFU JD Candidate ’22
Due to the infectious nature of COVID-19, our health care system has been forced to evolve in order to appropriately serve patients during this deadly pandemic. Before the public health emergency, roughly 13,000 Medicare beneficiaries received fee-for-service telehealth services per week, while almost 1.7 million Medicare beneficiaries utilized telehealth services in the last week of April, according to Centers for Medicare & Medicaid Services (“CMS”) data. Further, telehealth coverage should be a permanent fixture in our health care system, and the federal government should support telehealth coverage beyond the COVID-19 public health emergency.
Before the public health emergency, the U.S. Department of Health and Human Services (“HHS”) did not provide Medicare reimbursements for audio-visual telehealth visits unless the patient lived in a qualified rural area or was within the confines of certain medical facilities. Reimbursement has historically been the primary obstacle to telehealth services. The Telehealth Services During Certain Emergency Periods Act of 2020 allowed for HHS to modify or waive rules for telehealth under Medicare during the public health emergency, and recently, the American Medical Association asked President Trump, HHS, and Congress to extend some of the telehealth policies used during COVID-19 beyond this public health emergency.
Going forward, Congress should pass legislation that supports telehealth coverage. For Medicare beneficiaries, this legislation should remove the geographic limits on telehealth coverage and, at the very least, continue to reimburse coverage for telehealth services that can be delivered with “the same standard of care as comparable in-person services.” Additionally, Congress should move to eliminate patient out-of-pocket and deductibles for telehealth coverage that provides equivalent standards of care as in-person service. While parity laws have helped to maintain revenue for health care providers during the COVID-19 pandemic by allowing them to be reimbursed for telehealth services at the same rate as comparable in-person services, these laws squander a great opportunity to reduce health care spending, which accounts for roughly 18% of the United States’ GDP. Telehealth visits are generally shorter and cheaper to administer than in-person visits for health care providers. Thus, a “payment equity” policy that recognizes the cost-effective nature of telehealth coverage while adequately reimbursing providers is a better long-term public policy than payment parity.
However, policymakers must realize that while telehealth can be more convenient and cheaper for patients, in addition to being necessary for certain vulnerable groups during public health emergencies, telehealth cannot provide complete health care services for an individual. For example, something as simple as an annual physical will likely require bloodwork, and therefore, some degree of in-person service. Nevertheless, telehealth could be ideal for services such as physical therapy, speech pathology, and mental health. According to CMS data on its Medicare beneficiaries, roughly 60% of patients that receive mental health services, through a psychologist or psychiatrist, have received that care via telehealth during the COVID-19 public health emergency.
Furthermore, audio-visual telemedicine services are more ideal than audio-only telemedicine services. However, if Congress fails to allow for audio-only services to be reimbursed through Medicare post-public health emergency, this would limit telehealth’s benefits to some elderly Medicare beneficiaries who either do not feel uncomfortable using audio-visual or cannot use audio-visual technology. As of late July, at least three million Medicare “beneficiaries have received telehealth services via traditional telephone.” While audio-only services may only be appropriate in limited circumstances or for limited conditions, Congress should allow HHS some flexibility with reimbursement and telehealth support moving forward.
Additionally, HHS’s use of enforcement discretion for HIPAA violations arising from telehealth use during the COVID-19 public health emergency has encouraged telehealth. Privacy intrusions regarding telehealth have always been a major concern, but we should not punish health care providers for meeting with their patients through convenient apps such as FaceTime, Skype, or Zoom. However, that is not to say that platforms like TikTok and Facebook Live are appropriate for telehealth. The topic of privacy in health care will likely be a fluid discussion impacted by technological changes, and providers that provide “good faith” telehealth services should not automatically be subject to HIPAA violations. Congress should take this HIPAA regulatory flexibility framework into account when making permanent changes to HHS’s policies regarding telehealth. (For a more in-depth discussion of privacy concerns surrounding telehealth, see Nnaemeka Obiagwu’s piece in this blog series, linked here.)
Another crucial issue facing telehealth services is that telehealth might increase health care disparities. Patients in rural areas are less likely to have access to sufficient internet coverage, and telehealth coverage could widen class-based and racial disparities. These concerns should be addressed through federal funding for better internet capabilities in rural areas and areas with strong racial and class-based disparities. Furthermore, laws that do not require parity between equivalent telehealth and in-person services could exasperate these problems. Thereby, Congress should mandate that HHS closely monitor telehealth usage, outcomes, and relevant data factors to prevent these inequalities.
Telehealth’s benefits are almost undeniable in a post-COVID-19 world. Telehealth’s approach encourages patient-centered care and is a valuable tool for HHS, medical providers, and patients moving forward. Therefore, Congress should pass legislation that supports the expansion of telehealth coverage beyond the COVID-19 public health emergency.
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