The Telehealth Modernization Act codifies crucial flexibilities for telehealth coverage to increase access to high-quality health care services, particularly for seniors.

WASHINGTON— Today, Senators Tim Scott (R-S.C.), Brian Schatz (D-HI), and Jeanne Shaheen (D-N.H.) reintroduced the bipartisan Telehealth Modernization Act that would update coverage restrictions that have long prevented life-saving telehealth services for many of the nation’s roughly 61 million Medicare beneficiaries. They are joined by Senators Blackburn (R-TN), Marshall (R-KS), Tester (D-MT), and Wicker (R-MS).

“As Ranking Member on the Senate Aging Committee, I know how important telehealth is to our nation’s seniors. Telehealth has been a godsend for millions of Americans receiving health care services during the pandemic, while ensuring the spread of the virus stays at a minimum,” said Senator Scott. “Updating our laws to solve today’s challenges through commonsense and practical approaches will ensure more access to health care and a safer aging population.”

“Telehealth has been a critical lifeline for millions of patients who need care during this pandemic. Now we need to make sure that the emergency expansions of telehealth coverage for Medicare beneficiaries are made permanent,” said Senator Schatz. “This new bill works hand in hand with the CONNECT for Health Act by removing unnecessary barriers in Medicare and making it easier to keep using telehealth moving forward.”

While these Medicare access gaps predated the pandemic, the spread of COVID-19 highlighted the urgency of updating telehealth coverage rules, prompting Congress to provide authority for temporary emergency waivers designed to ensure safe access to care for seniors and other vulnerable populations. As the pandemic raged, Medicare beneficiaries turned to telehealth services to minimize exposure risk and receive medically necessary care in safe and accessible settings. In April 2020, more than two-fifths (43.5%) of Medicare FFS primary care visits were provided through telehealth, and from mid-March through early July of that year, more than 10.1 million beneficiaries accessed telehealth services. 

Without further congressional action, however, these emergency flexibilities will expire at the end of the public health emergency, creating chaos for tens of millions of Medicare beneficiaries, including many who have come to rely on telehealth for critically needed care. Our nation’s seniors deserve better. The Telehealth Modernization Act would help to support their needs through necessary updates to coverage policies.

The Telehealth Modernization Act makes permanent two changes: 

•Ensures that patients can access telehealth anywhere by permanently removing Medicare’s so-called “geographic and originating site” restrictions, which required both that the patient live in a rural area and use telehealth at a doctor’s office or certain other clinical sites.

•Protects access to telehealth for patients in rural areas.

And gives the U.S. Secretary of Health and Human Services new authority to do these three things:

•Help patients continue to access telehealth from physical therapists, speech language pathologists, and other health care providers.

•Help give Medicare recipients many more telehealth services.

•Help Medicare hospice and home dialysis patients use telehealth to keep receiving necessary care.

Supporting Organizations: ACT | The App Association, Alliance for Aging Research, Alliance for Connected Care, American Academy of Neurology, American Association for the Study of Liver Diseases, American Clinical Neurophysiology Society, American Heart Association, American Medical Association, American Nurses Association, American Telemedicine Association, American Urological Association, College of Healthcare Information Management Executives, Connected Health Initiative, eHealth Initiative, Endocrine Society, Health Innovation Alliance, HIMSS, Infectious Diseases Society of America, Medical University of South Carolina, National Association of ACOs, National Hospice and Palliative Care Organization, National Multiple Sclerosis Society, National Organization for Rare Disorders, Palmetto Care Connections, Personal Connected Health Alliance, Prisma Health, Society of General Internal Medicine, South Carolina Hospital Association

 

The Public Health Emergency introduced a myriad of changes to federal and state telemedicine and digital health laws and rules. There were expansions to telehealth coverage and reimbursement, suspension of enforcement on HIPAA security for digital health, expedited FDA review processes, DEA exemptions of controlled substance prescribing rules, and state waivers of medical licensure requirements. Nearly all these changes, whether permanent or temporary, were telemedicine-friendly and promoted the use of digital health technology to deliver medical care.

But one change, signed into law in the last days of December 2020, has raised confusion (and eyebrows) in the telemental health provider community. It is a single sentence, contained in Section 123 of the Consolidated Appropriations Act of 2021. It reads:

“Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder unless such physician or practitioner furnishes an item or service in person, without the use of telehealth …” (emphasis added).

In short, the Act changes the Medicare telehealth coverage statute, expanding Medicare payment beyond substance use disorder treatment (already required under the SUPPORT Act) to more broadly cover treatment of mental health disorders. Most telemedicine industry stakeholders would support expanded Medicare coverage of telehealth-based mental health services. The need for access to mental health care is high, considering the well-documented shortage of mental health practitioners nationwide, particularly in rural areas. However, under this new law, Medicare will cover the telehealth mental health service only if the practitioner has conducted an in-person consult with the patient in the prior six months and subsequently continues to conduct in-person exams (at such a frequency to be determined by HHS). Otherwise, Medicare will not pay for the telehealth service.

Here is the language of Section 123 in its entirety.

SEC. 123. EXPANDING ACCESS TO MENTAL HEALTH SERVICES FURNISHED THROUGH TELEHEALTH.

(a) TREATMENT OF MENTAL HEALTH SERVICES FURNISHED THROUGH TELEHEALTH.—Paragraph (7) of section 1834(m) of the Social Security Act (42 U.S.C. 1395m(m)) is amended—

(1) by striking ‘‘DISORDER SERVICES FURNISHED THROUGH TELEHEALTH.—The geographic’’ and inserting ‘‘DISORDER SERVICES AND MENTAL HEALTH SERVICES FURNISHED THROUGH TELEHEALTH.—

‘‘(A) IN GENERAL.—The geographic’’;

(2) in subparagraph (A), as added by paragraph (1), by inserting ‘‘or, on or after the first day after the end of the emergency period described in section 1135(g)(1)(B), subject to subparagraph (B), to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder, as determined by the Secretary,’’ after ‘‘as determined by the Secretary,’’; and

(3) by adding at the end the following new subparagraph: ‘

‘(B) REQUIREMENTS FOR MENTAL HEALTH SERVICES FUR- NISHED THROUGH TELEHEALTH.—

“(i) IN GENERAL.—Payment may not be made under this paragraph for telehealth services furnished by a physician or practitioner to an eligible telehealth individual for purposes of diagnosis, evaluation, or treatment of a mental health disorder unless such physician or practitioner furnishes an item or service in person, without the use of telehealth, for which payment is made under this title (or would have been made under this title if such individual were entitled to, or enrolled for, benefits under this title at the time such item or service is furnished)—

“(I) within the 6-month period prior to the first time such physician or practitioner furnishes such a telehealth service to the eligible telehealth individual; and

“(II) during subsequent periods in which such physician or practitioner furnishes such telehealth services to the eligible telehealth individual, at such times as the Secretary determines appropriate.

‘‘(ii) CLARIFICATION.—This subparagraph shall not apply if payment would otherwise be allowed—

‘‘(I) under this paragraph (with respect to telehealth services furnished to an eligible telehealth individual with a substance use disorder diagnosis for purposes of treatment of such disorder or cooccurring mental health disorder); or

‘‘(II) under this subsection without application of this paragraph.’’.

(b) IMPLEMENTATION.—Notwithstanding any other provision of law, the Secretary may implement the provisions of, or amendments made by, this section by interim final rule, program instruction, or otherwise.

This is not the first time restrictions have been imposed on Medicare reimbursement for telehealth or virtual care services. For example, certain CPT service codes are limited to established patients, select items of durable medical equipment have had a “face-to-face encounter” requirement, and the geographic and originating site restrictions on telehealth have been in place for nearly 20 years. Yet, this law may very well be the first and only instance of a federal statute expressly mandating an in-person exam as a prerequisite for Medicare coverage of a telehealth-based service.

Little legislative history is readily available that reflects Congressional lawmakers discussing the merits of Section 123’s requirement for an in-person exam. To be fair, at 5,593 pages and $2.3 Trillion, this legislation is the longest bill ever passed by Congress and one of the largest spending measures ever enacted. But the in-person exam requirement is at odds with the direction that telehealth policy has moved over the last decade. It disrupts Medicare’s historical approach, which is to defer to state laws on professional practice requirements and clinical standards of care.

State laws vary on their specific requirements and practice standards, but at this point generally allow the creation of valid doctor-patient relationships via telemedicine without an in-person exam, assuming the standard of care is met. Additionally, 43 States now have telehealth coverage laws requiring commercial health plans to cover services delivered via telehealth. Some states, like Massachusetts’ recent telemedicine law, even take extra steps to ensure reimbursement of telehealth-based mental health care, and CMS itself includes new patient evaluation/management (E/M) service codes (e.g., CPT Codes 99201-99205) among the Medicare-covered telehealth services.

Moreover, Section 123’s new prerequisite for an in-person visit applies only to mental health treatment. Medicare beneficiaries seeking medical services via telehealth are not subject to this requirement. It is only those patients seeking treatment of mental health disorders who are required to “mask up” and head to their practitioner for an in-person exam. It prompts consideration as to why mental health care is being held to different payment restrictions than medical care, despite years of efforts on mental health parity and the passage of the Mental Health Parity and Addiction Equity Act.

While expansion of Medicare coverage for telehealth services can increase access to care, particularly as the Public Health Emergency continues, the policy implications of Section 123’s in-person exam requirement may leave patients and practitioners wondering if the Act actually gives as much as it takes.

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Angus King (I-Maine), Maggie Hassan (D-N.H.) and Mark Warner (D-Va.) are urging the FCC to administer the Emergency Broadband Benefit Program in a way that helps address the longstanding digital divide.

The senators are encouraging the FCC to design the program in a way that helps to establish a “durable, scalable model for future digital equity efforts,” and lays out specific steps to ensure that all Americans can access this essential 21st century tool.

“As communities across the country continue to grapple with connectivity challenges as a result of the coronavirus pandemic, we have seen unprecedented reliance on telepresence services, including telework, online education, telehealth, and remote support services,” the senators wrote in a letter to the FCC this week. “Unfortunately, the already-existing digital divide has been further exacerbated by these disruptions, which have highlighted and furthered the broadband gap that too many American households still face. While Congress continues to work with the FCC and other Federal agencies on expanding broadband access to unserved and underserved areas through a number of programs, affordability remains a significant barrier to connectivity for far too many Americans. According to Pew Research, approximately half of non-broadband users’ given reason for lack of connectivity is prohibitive cost, and 44 percent of households earning $30,000 or less do not have broadband. With the establishment of the Emergency Broadband Benefit Program, and with proper, forward-looking implementation, we believe we can make a substantial difference in supporting broadband affordability for the most vulnerable Americans.

The letter from King, Hassan and Warner goes on to lay out additional steps that the FCC should take in order to maximize the reach and impact of the EBBP both during this crisis and in the long-term.

The senators highlight the value of collaborating, with state and community partners, urge the commission to set the eligibility criteria as broadly as reasonably possible, and emphasize the importance of supporting newer or smaller broadband services, many of which operate in historically underserved areas.

The full letter can be downloaded here.

Investments Will Benefit 5 Million Rural Residents

WASHINGTON, Feb. 25, 2021 – The United States Department of Agriculture (USDA) today announced it is investing $42.3 million to help rural residents gain access to health care and educational opportunities (PDF, 255 KB). Rural areas are seeing higher infection and death rates related to COVID-19 due to several factors, including a much higher percentage of underlying conditions, difficulty accessing medical care, and lack of health insurance. The $42.3 million in awards includes $24 million provided through the CARES Act. In total, these investments will benefit 5 million rural residents.

“The coronavirus pandemic is a national emergency that requires a historic federal response. These investments by the Biden Administration will help millions of people living in rural places access health care and education opportunities that could change and save lives,” said Agriculture Secretary Tom Vilsack. “USDA is helping rural America build back better using technology as a cornerstone to create more equitable communities. With health care and education increasingly moving to online platforms, the time is now to make historic investments in rural America to improve quality of life for decades to come.”

A recent report (PDF, 214 KB) by the Rural Policy Research Institute’s Center for Rural Health Policy Analysis found infection and death rates in rural America due to COVID-19 are 13.4 percent higher than in urban areas. A recent report from USDA’s Economic Research Service, USDA ERS – Rural Residents Appear to be More Vulnerable to Serious Infection or Death From Coronavirus COVID-19, underscored the challenges facing rural Americans amidst the COVID-19 pandemic with even greater detail. Due to a confluence of factors, including higher percentages of underlying conditions, lack of health insurance, and lower access to medical facilities/care than urban counterparts, ERS analysts found rural Americans are suffering more severe illness or death due to COVID-19.

Rural Residents Appear to be More Vulnerable to Serious Infection or Death from Coronavirus COVID-19

	Rural Percent	Urban Percent
Underlying health conditions (ages 20 to 84)	23.7	3.0
Older adult population scale	15.9	4.0
Lacking health insurance (ages 25 to 64)	20.2	10.5
Distance to county with an intensive care hospital	11.3	0.3

The table above is from the USDA ERS January 2021 report: Rural Residents Appear to be More Vulnerable to Serious Infection or Death from Coronavirus COVID-19

Background:

USDA is funding 86 projects through the Distance Learning and Telemedicine (DLT) grant program. The program helps rural education and health care entities remotely reach students, patients and outside expertise. These capabilities make world-class education and health care opportunities accessible in rural communities. The ability to use telehealth resources is critical, especially now during a global pandemic.

USDA announced investments today in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, American Samoa, Guam, Puerto Rico and the Virgin Islands.

Below are examples of projects announced today:

• In Georgia, the Morehouse School of Medicine Inc. will use a $997,194 grant to purchase interactive telecommunications, distance learning and telemedicine equipment. Equipment will be installed in service hubs in two counties in west-central Georgia. It will be used to provide a variety of health care services to residents in underserved rural areas of nine counties across the state. These services include mental health and substance abuse treatment and counseling; clinical services; referrals for specialty care; health education and career development to schools; and chronic disease diagnosis, treatment and management, including COVID-19.
• The Fall Mountain Regional School District in New Hampshire is receiving a $995,158 grant. It will provide distance learning services in Cheshire and Sullivan counties. Distance learning will enable schools to share instructional resources, provide cultural literacy and career pathways programs for students, and provide professional development opportunities. The grant will also help the district respond to the COVID-19 pandemic.
• Oklahoma’s Okmulgee Public School District is being awarded a $756,760 grant to provide distance learning services in Creek and Okmulgee counties. Schools will expand course offerings and provide professional development opportunities. The schools will use videoconferencing and interactive display panels to expand the curriculum, including Science, Technology, Engineering and Math (STEM) courses. The equipment this grant provides will help schools respond to the COVID-19 pandemic by enabling students to participate in virtual field trips and join classes from home.

To learn more about investment resources for rural areas, interested parties should contact their USDA Rural Development state office.

In January, President Biden requested all parts of the federal government to contribute resources to contain the coronavirus pandemic. USDA is responding to the President’s call to action. To date, more than 350 USDA personnel have deployed to assist with standing up vaccination sites, for example. In addition to personnel, USDA is offering its facilities, cold chain infrastructure, public health experts, disaster response specialists, and footprint in rural and Tribal communities across the country. USDA’s commitment to control the pandemic extends to our own staff and facilities, with masking and physical distancing requirements across USDA, a commitment to provide PPE to our front-line workers, and working with states to prioritize vaccinations for our workforce. For more information, visit www.usda.gov/coronavirus. USDA also encourages people seeking health insurance to go to HealthCare.gov now through May 15th due to a special enrollment period. If you are recently uninsured due to a job loss or between jobs, find a plan at HealthCare.gov and keep it for as long as you need it.

If you’d like to subscribe to USDA Rural Development updates, visit our GovDelivery subscriber page

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USDA Rural Development provides loans and grants to help expand economic opportunities and create jobs in rural areas. This assistance supports infrastructure improvements; business development; housing; community facilities such as schools, public safety and health care; and high-speed internet access in rural areas. For more information, visit www.rd.usda.gov.

USDA touches the lives of all Americans each day in so many positive ways. In the Biden-Harris Administration, USDA is transforming America’s food system with a greater focus on more resilient local and regional food production, ensuring access to healthy and nutritious food in all communities, building new markets and streams of income for farmers and producers using climate-smart food and forestry practices, making historic investments in infrastructure and clean energy capabilities in rural America, and committing to equity across the Department by removing systemic barriers and building a workforce more representative of America. To learn more, visit www.usda.gov.

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