The Department of Health and Human Services (HHS) announced at the outset of the Biden Administration that they anticipate extending the public health emergency (PHE) through at least the end of 2021. They said they would give 60 days’ notice prior to the termination of the PHE – this does NOT mean that providers have 60 days post the end of the PHE before the waivers end. That is a point of some confusion. There are a few specific flexibilities that have different end dates, but 1135 waivers and most of the congressional enacted flexibilities, including all related to telehealth, end with the PHE.

Telehealth has been an area of great expansion due to legislation from last spring and due to the CMS waivers authorized by the PHE. The geographic and originating site requirements are waived, the providers who can provide services via telehealth have been expanded. The services that can be provided via telehealth have also been expanded as well as provisions that allow for the use of technology like FaceTime for the visits and in some circumstances, audio only visits.

There have been a number of bills introduced throughout the last Congress and starting into this congress that look at what parts of the telehealth expansion are going to be made permanent. One of those bills, S. 368, the Telehealth Modernization Act was reintroduced on February 22nd by Senators Tim Scott (R-SC), Brian Schatz (D-HI), and Jeanne Shaheen (D-NH) along with Senators Marsha Blackburn (R-TN), Roger Marshall (R-KS), and Roger Wicker (R-MS).

The bill focuses on key pandemic related flexibilities that came up in a Health, Education, Labor, and Pensions (HELP) committee hearing this fall that they have universally heard were essential to keep. It was originally introduced by former Senator Lamar Alexander after that hearing. The bill would enhance Medicare beneficiary access to telehealth services by:

  1. Permanently eliminating Medicare’s geographic and originating site restrictions;
  2. Allowing the HHS Secretary to expand the types of practitioners eligible to provide Medicare-covered telehealth services, as clinically appropriate;
  3. Allowing the HHS Secretary to retain, as appropriate, the expanded list of telehealth services covered during the pandemic emergency period, along with the sub-regulatory process for modifying this list;
  4. Permanently allowing federally qualified health centers (FQHCs) and rural health clinics (RHCs) to serve as eligible distant sites for telehealth services; and
  5. Permanently allowing for the use of telehealth, as clinically appropriate, to conduct face-to-face clinical assessments for home dialysis and face-to-face encounters for hospice care.

We are very excited to see all of the provisions in this bill and signed on as supporters. We worked with the sponsors in this Congress and with Senator Alexander previously on the provision related to the expansion of the face-to-face recertification flexibilities for hospice providers.

Secretary-designate Becerra indicated in his hearing before the HELP Committee that he was very supportive of keeping expanded access to telehealth so this deference to the secretary for some of the expansions should not be a barrier to expansion.

On the other hand, concerns about fraud and abuse in expanded telehealth will remain a discussion. For example, the Office of Inspector General (OIG) has announced an audit, dubbed the “Home Health Agency Telehealth Project,” that will examine home health providers’ usage of telehealth over the last year while the flexibilities were granted. The audit will take aim at evaluating the home health services provided by deciphering whether agencies administered and billed for services in an appropriate manner. This report is due out in 2022.

While CMS made adjustments that allowed home health agencies to use telehealth alongside in-person services, as long as the technology usage was related to the services being provided and that a description was included on how it would supplement the plan of care, home health agencies cannot bill for telehealth services under the Patient Driven Groupings Model (PDGM). We have been working to fix that through the Home Health Emergency Access to Telehealth Act (HEAT) which is still pending reintroduction in this Congress. But it is not clear how OIG will address this issue in its report.

We will continue to monitor and promote telehealth expansions and work with members of Congress, CMS, and other partners on how to expand these services with appropriate guardrails against fraud waste and abuse.