151 Days

Telemedicine and e-health services. Closeup of doctor waving hand at computer screen greeting senior woman at online consultation. General practitioner using laptop to video call mature patient

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By Elizabeth B. Westbrook, Senior Advisor, Government Relations, Buchanan Ingersoll & Rooney

Since the beginning of the COVID-19 pandemic, perhaps the lone bright spot in the health care landscape has been the rise of telehealth. Prior to the pandemic, virtual health care had long been technologically feasible, but financially untenable, and progress on policy and reimbursement has been slow. But when SARS-COV-2 rendered all forms of in-person interaction dangerous – including doctor-patient, providers and health systems rapidly stood and scaled up telehealth solutions. The Federal Government acted with equal haste to permit payment for these virtual visits, but they tied these payment flexibilities and waivers to the Federal Public Health Emergency (PHE). 

Now, more than two years in, virtual visit numbers have come down from their initial spring 2020 peak, but remain high, and patients now embrace and rely on telemedicine for its many benefits. Given this paradigm shift in health care access and delivery, it might seem obvious to providers and patients that telehealth is here to stay. Unfortunately, the same policy debates that stalled progress before COVID continue to hinder permanent reform. The waivers and flexibilities that allowed telehealth to flourish (and be paid for) are still tied to the PHE and attempts in Congress to decouple these protections have thus far failed. 

After much debate and several proposals to extend COVID telehealth permissions for either one or two years past the PHE, telehealth’s proponents were left disappointed when these protections were only extended for 151 days past the PHE in the recently passed 2022 budget. Advocates in DC who were more optimistic than ever that we were finally on the brink of permanent telehealth reform now have a very short window – a window that will most likely close in December of this year – to convince Congress to act more robustly. 

What would this mean for providers who have offered their patients virtual options? It would mean that Medicare, and likely other payors, would cease to compensate them for these visits and services. Telehealth reimbursement would revert to pre-COVID limitations, meaning it would only be available in certain settings and geographic areas, and flexibilities like audio-only visits would no longer be permitted. It might also mean that patients will look for providers who can continue to offer virtual services, handicapping smaller practices or those that rely most heavily on Federal programs. 

Given patient and provider support for telemedicine and the fact that technology is not going anywhere, it is unlikely that Congress will roll back every COVID policy, but they may curb some current activities and put up guardrails as compromises. Some such proposals include lower rates for tele-visits, pre-existing patient relationships or in-person care requirements, and stricter audio-visual technology standards. Telehealth availability may also depend on the specialty: tele-mental for example enjoys perhaps the broadest support on Capitol Hill and is currently being negotiated in a bipartisan package by the Senate Finance Committee around behavioral health. 

Cost continues to be the main objection sounded by telehealth’s opponents, which means telehealth legislation may get tangled up in other “expensive” priorities like COVID relief and reconciliation, meaning telehealth, with its many subparts, could become a bargaining chip. The 151-day post-PHE extension will likely expire in December, so it is possible some of these other priorities will have been discharged by then, or that costly votes will be easier to take once the election is over, but it’s also impossible to know what other expensive issues could arise between now and then. Seemingly unrelated matters like defense spending in Ukraine could derail telehealth negotiations if the debate continues to come down to a Congressional Budget Office score. 

No one can predict the future in DC, but providers should be communicating with Congress and rule makers like the Centers for Medicare and Medicaid Services (CMS) now – either through associations and trade groups or directly. Policymakers continue to tell stakeholders that they need data to understand how current more permissive telehealth policies impact access, equity, cost, and outcomes for patients. Providers who can demonstrate that the ability to offer patients virtual care has not negatively impacted access, outcomes, or cost should make that data available. And no one should take the availability of widespread telehealth for granted.