Telehealth Update: New Bill Could Provide Much Needed Certainty to Providers and Patients


On Monday, February 7, 2022, U.S. Senators Catherine Cortez Masto, D-Nevada, and Todd Young, R-Indiana, introduced the Telehealth Extension and Evaluation Act, which if passed, would extend several of the telehealth waivers for two years after the end of the federal public health emergency (PHE).  See our previous coverage of telehealth during the COVID-19 pandemic. The PHE was most recently renewed for an additional 90 days on January 16, 2022.  Since January 2020, providers who pivoted to telehealth in order to deliver care to their patients during the pandemic have had to closely monitor the status of the PHE, which the Secretary of HHS is only authorized to extend for 90 days at a time.  Passage of the proposed legislation would provide some much-needed certainty and would give providers time to transition back to in-person care where necessary.  It would also further the growth and expansion of telehealth services and continued integration into our health care delivery system.

If passed, Medicare coverage of a broad range of telehealth services would be extended for an additional two years, regardless of where the patient is located.  Prior to the PHE, Medicare only covered telehealth services in limited circumstances, governed by the originating site rules under 42 U.S.C. § 1395m(m).  The bill also provides telehealth flexibilities for Federally qualified health clinics, rural health clinics, and critical access hospitals.  While the bill extends the Medicare reimbursement structure in place during the PHE, it does include limitations on reimbursement for high-cost durable medical equipment and high-cost laboratory tests ordered via telehealth during the proposed two-year extension.

In addition to extension of the Medicare waivers, the bill would also extend flexibilities under the Controlled Substance Act, which usually requires prescribers to conduct an in person examination prior to prescribing a controlled substance.  During the PHE, physicians and other prescribers are authorized to prescribe controlled substances based on a medical evaluation conducted using two-way, real-time audio and video communication.  This and other administrative waivers issued by the DEA have allowed providers to treat new and existing patients throughout the pandemic.  Telehealth providers who prescribe controlled substances must ensure that the prescription is issued for a legitimate medical purpose within the usual course of professional practice.  Providers must also consider applicable state law, which in some cases is more restrictive.

In addition to providing certainty to telehealth providers, the additional two years will give Congress the opportunity to determine whether the telehealth flexibilities that have been in place since early 2020 should be made permanent.  If passed, the bill would also require the Secretary of HHS to conduct a study and issue a report that will include, among other things, recommendations regarding the permanency of the waivers and flexibilities authorized by the bill.  The telehealth flexibilities dramatically changed the face of telehealth in the U.S.  We will continue to monitor the Telehealth Extension and Evaluation Act and other legislative and administrative action related to telehealth.

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