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Bills to Avoid ‘Telehealth Cliff’ Delayed by Higher Priorities

Oct. 15, 2021, 9:35 AM

Lawmakers are struggling to push widely supported legislation that would end the “telehealth cliff” through a logjam created by their intense focus on President Joe Biden‘s more divisive priorities.

Senators have been pulling all-nighters to find common ground on the Democratic spending package that could expand Medicare and Medicaid, alongside negotiating Biden’s infrastructure bill, raising the U.S. debt ceiling, keeping the government from shutting down, and finding the time to breathe.

“There’s not much oxygen in the room, even for an issue of agreement,” said Kyle Zebley, vice president of public policy for the American Telemedicine Association.

Telehealth use has skyrocketed during the pandemic, increasing access to care amid nationwide health-care staffing shortages. Doctors and other medical providers can initiate telehealth treatment with a patient who is in their home due to the passage of the CARES Act, which provided Covid-19 relief across many sectors. Medicare wouldn’t reimburse providers for those visits in the past because of payment rules in the Social Security Act, except if patients were in rural areas or if the visits originated in specific qualifying sites like hospitals.

These waivers will expire when the public health emergency ends, creating a “telehealth cliff” if Congress doesn’t enact legislation to make the pandemic flexibilities permanent, Zebley said.

“People are sort of underestimating the shock that will occur across communities if we don’t deal with this cliff,” Sen. Brian Schatz (D-Hawaii) said at a recent hearing of a Senate Commerce, Science, and Transportation panel.

Approaching the Cliff

Only a fifth of Medicare beneficiaries live in rural areas, so the end of the waivers would vastly reduce access to telehealth services for the rest of the population. “Patients stand to lose significantly,” Zebley said.

“There’ll be an incredible disruption in my ability to take care of my patients when we reach this cliff,” Sterling Ransone, president of the American Academy of Family Physicians, said at the hearing.

Telehealth has allowed Ransone to make more house calls than he did before the pandemic and keep many of his patients out of the hospital. “This is a big cost savings for our entire health-care system,” he said.

If the waivers run out, “I will be doing a lot of work for services for which I’m not going to be reimbursed,” Ransone said.

Telehealth has also been lauded as a solution to address the staffing shortages in the health-care industry. Disparities in access to care, especially access to specialists, can be ameliorated if a patient can choose from all of the doctors in the U.S., rather than just the doctors nearby.

‘Kick the Can Down the Road’

The CONNECT for Health Act (S. 1512), introduced April 29, is the leading piece of telehealth legislation and has bipartisan support from 59 senators. If passed, the bill would remove the geographic restrictions on telehealth usage.

“Everybody has accepted that we need to move forward on telehealth,” Rep. Brett Guthrie (R-Ky.) said at a recent webinar.

Lawmakers lack the motivation to make the temporary waivers permanent because the public health emergency is likely to last into 2022, Zebley said.

States have been using a similar “kick the can down the road approach” to “delay making a final decision on what stays permanent,” said Mei Kwong, executive director of the Center for Connected Health Policy.

While telehealth is widely believed to have improved access to care, some advocates urge caution about its adoption post-pandemic.

“I don’t think telehealth is going to replace in-person medicine,” Rep. Brad Schneider (D-Ill.) said at a webinar.

It may not be the right decision for every medical appointment or every practice area, so the decision should be left up to each individual patient and doctor, Ransone said.

Telehealth can also increase the risk of fraudulent behavior. Providers can “see a lot of patients on a large scale in various locations in a much shorter period of time than in-person visits,” said Katherine Driscoll, of counsel at Morrison & Foerster LLP. Driscoll prosecuted health-care fraud when she was an assistant U.S. attorney in the U.S. Attorney’s Office for the Eastern District of Pennsylvania. “The numbers or instances of fraud can be on a much larger scale than in-person visits.”

VIDEO: Telehealth Is Booming During Covid. Is it Here to Stay?

Some Movement

Some telehealth policies are progressing via the Centers for Medicare & Medicaid Services’s physician fee schedule, which determines how much doctors and specialists are reimbursed by Medicare.

Telehealth treatment for mental health care is expected to remain available through Dec. 31, 2023, under a proposed rule (RIN 0938-AU42) by the Biden administration that will soon be finalized.

The Social Security Act requires patients to have an in-person visit every six months, which will limit the number of patients who can benefit from this kind of care. Some lawmakers are trying to eliminate the in-person requirement for mental health services (S. 2061).

Pieces of other telehealth bills could also “be slipped into reconciliation or the infrastructure bill,” Kwong said, but so far, there have been no signs that lawmakers will do so.

As for the major telehealth legislation, “I don’t think that Congress is going to act” until there is a certain end date to the public health emergency, Zebley said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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