Step By Step: Incremental Telehealth Change

By Matt Fisher, Esq
Twitter: @matt_r_fisher
Host of Healthcare de Jure#HCdeJure

Building on years of hype and promise, telehealth began to get its moment in early 2020 when COVID-19 brought much of the healthcare system to a halt as a means of enabling care to be focused on the growing pandemic. With the sudden thrust to center stage, an overnight scramble started across all types of care delivery organizations from physician practices to hospitals to skilled nursing facilities, and countless others. Many lessons were learned in addition to identification of further opportunities and issues to improve.

A Mad Dash to Implement
The initial realization that telehealth would become the primary means of delivering care in the early days of COVID meant many organizations had to determine what exactly that meant. Systems and process were not in place to facilitate telehealth as even basic subscriptions to platforms were not in place. Aiding the rollout was a double-edged sword from the federal government that enforcement of privacy, security, and data breach requirements under HIPAA would not occur so long as the public health emergency caused by the pandemic remained in place.

Electing not to enforce HIPAA came along with guidance that any non-public facing platform could be utilized, with Zoom, Facebook Messenger, and FaceTime being specifically referenced. Even though the guidance also identified some platforms that complied with HIPAA, the ability to use common, free systems generated the most interest. However, use of those platforms (at least from a compliance and reasonable expectation perspective) could not be expected to last forever. Thus the reference to the double-edged sword because entrenching process that did not fit under HIPAA created a bit of a danger for continuing use of telehealth.

Aside from essentially waiving HIPAA, the other big change was broad and equal reimbursement of telehealth services to in-person services. Arguably the financial benefit drove most of the use because money will influence decisions. Especially given the near impossibility of in-person visits, getting equal reimbursement was a major development. The equal reimbursement also represents an area for future concern because removal of a reimbursement incentive (at least in a fee for service world) will undercut any continued use.

The Impact
The impacts on service delivery of telehealth ended up being somewhat surprising. Over initial skepticism, it was determined that telehealth largely complemented and potentially enhanced the ability to clinicians and patients to interact and promoted efficiency. While all agree that not every service or interaction can occur remotely, many quick and common visits could not be better delivered through means of a telehealth connection, which created more time for clinicians and improved patient satisfaction for not needing to carve out a half day or more worth of time for a routine or fast visit.

The real world experience should provide data points to better understanding how to weave telehealth and in-person care together in a fashion that results in a unified picture of healthcare. Distinctions between telehealth and in-person should dissolve into discussions just about healthcare generally because all are components of that broader picture.

The separation between clinicians and patients also brought the benefits of remote patient monitoring (RPM) more to the fore. While RPM reimbursement pre-dates COVID (Medicare introduced a couple of years ago and some private payors cover), adoption did not necessarily come even though it could be viewed as a relatively easy means of supplementing revenues. However, when regular visits were not possible, RPM offered a pathway to frequent insight into a patient’s health and activity outside of the walls of a healthcare organization. The real life data could paint a better picture, though it is necessary to adopt systems that enable a good flow of that data to clinicians, not just raw, but interpreted too. RPM is also a bit of a gateway into care coordination and patient engagement because core principles from each of those concepts apply to RPM and other areas of value based care. Any way to better prepare for value based care should be adopted with arms wide open.

The Uncertain Future
As happiness and satisfaction with telehealth has grown with clinicians and patients, questions about the future become blurrier. All of the immediate and appreciated changes from the early days of the pandemic are premised upon the existence of a public health emergency. When the emergency disappears, so do the changes.

Permanent changes have been relatively few and far between. A handful of private payors announced that pandemic driven reimbursement changes for telehealth (specifically co-equal reimbursement) would remain, but those announcements have not occurred in many places. Regulatory or legislative action has also been sparse. In New England for example, one state enacted a law to keep the changes in place until March 2021 while two other states adopted legislation or regulations to only permanently expand portions of the changes.

The lack of concrete action leaves the future in limbo.

Glimmers of Change
While widespread action on telehealth has not yet occurred, the finalization of the 2021 Medicare Physician Fee Schedule (the 2021 PFS) could be a spur and acted as an opportunity for a call to action. The 2021 PFS included specific permanent expansion of some telehealth coverage. The 2021 PFS also modified RPM to a degree, but not necessarily as much as commenters would have preferred. The argument from the Centers for Medicare and Medicaid Services (CMS) is that it took as much action as it could. While the changes build in telehealth coverage not premised upon the pandemic, the scope of the changes is also not nearly was broad-based as the pandemic drive changes.

As noted already, some states and private payors have taken steps to permanently cover and expand telehealth. However, as often happens, if Medicare expands and sets a new baseline, then others will follow. That is the natural consequence of Medicare being one of the biggest payors in the United States and being able to create somewhat clearer guidelines on a national basis. This is demonstrated by states and private payors referring back to Medicare requirements in plan documents and coverage guidance.

However, CMS asserted that it took as much action as it could absent legislative change. The statement that legislative change is needed is likely accurate and demonstrates why more still needs to be done. The hands of regulators can be tied by current statutes, some of which do not permit adoption of telehealth related policies. If statutes are not in the right place, then legislators must take up bills to make the high level change that is then translated intro regulatory change.

While CMS mentioned Congress, the same is true of the states too. Laws in the states vary when it comes to coverage requirements, both in scope of services and reimbursement levels. The need for both levels of action cannot be ignored or forgotten.

What Next?
What comes next will be determined by the collective will of all involved. Will the pre-pandemic status quo be allowed to snap back into place, or will reports of all wanting telehealth changes to be permanent result in permanent action? While time will tell, influence can be exerted by focusing on the issue, discussing at all levels, and reminding those that need to act why action is needed.

This article was originally published on Mirick O’Connell’s Health Law Blog and is republished here with permission.