Telehealth21 Keynotes Map Out a Path for Connected Health Policy

April 29, 2021 - Due in large part to the coronavirus pandemic, the past year has seen incredible advances in telehealth access and coverage. But much of that progress could be nullified if federal and state lawmakers don’t come up with a long-term telehealth policy.

The challenge, says Nate Lacktman, is learning from the past year to create a policy that will advance telehealth and fulfill the promises of connected care.

“I think there will be a lot of opportunity to mine the experiences that we saw in 2020,” Lacktman, a partner with Foley & Lardner and chair of the firm’s Telemedicine & Digital Health Industry Team, said during the closing keynote of last month’s Telehealth21 virtual summit, sponsored by Xtelligent Healthcare Media and mHealthIntelligence.com. “It’s like a sandbox. … A lot of the rules just disappeared, right, and it showed, it demonstrated they’re not sacrosanct. People made up these rules, and many times they’re arbitrary.”

“What I think it should show to us is that we don't have to assume that any of these things are permanent or inviolate,” he added. “They can all be changed and I think that if we're able to demonstrate really valid use cases, I think we'll see a lot more models in service areas come out of COVID - if nothing else out of necessity and opportunity.”

One such use case can be seen at Boston’s Brigham and Women’s Hospital, whose Home Hospital program enables the health system to use mHealth and telehealth tools in conjunction with home healthcare visits to treat patients at home who would otherwise be taking up ICU beds and costing a lot more money.

David Levine, MD, MPH, MA, a physician and researcher with Boston’s Brigham and Women’s Hospital who helped develop their Home Hospital program in 2016, opened the two-day telehealth summit with a keynote that explained how the program—now part of Medicare’s new Acute Hospital at Home payment model—gives the hospital a new way of caring for patients outside the hospital’s walls. 

Levine pointed out the program allows patients to be treated at home, where they’re more comfortable and therefore more likely to show improved clinical outcomes, while providers can track them and adjust care management as needed. 

Levine said the program has not only improved clinical outcomes for those patients, but allowed Brigham and Women’s to shift care out of the hospital, which is more resource-intensive and costly. And it has given him and his colleague new insights into how telehealth and mHealth tools can be used to develop new care platforms.

While the Brigham and Women’s program fits neatly into a new CMS payment model, many other health systems adopted telehealth on the fly to deal with COVID-19. They took advantage of federal and state emergency measures that eased restrictions on who could use the technology and how it could be used, and opened the doors to more coverage of telehealth services.

In his keynote to close the Telehealth21 conference, Lacktman explained how Medicare tightly controlled how telehealth could be used and reimbursed prior to the pandemic, and how the Centers for Medicare & Medicaid Services (CMS) was slowly opening the door to more uses and coverage. 

“So we already saw pre-COVID an erosion of some of these restrictions in statute,” he said. “It was fits and starts or chipping away because CMS had already maximized its flexibility pre-COVID in expanding covered services. And it required Congressional change to amend the Social Security Act to make these different carve-outs.”

The emergency measures, encapsulated in waivers such as the Section 1135 waiver, opened the door to telehealth by giving the Health and Human Services Secretary the authority to temporarily eliminate restrictions due to the public health emergency. CMS then followed that up with an interim final rule that suspended some restrictions and added CPT codes for new telehealth services.

“It allowed telehealth to be used for the required face-to-face visits,” Lacktman said. “It allowed direct supervision requirements to be fulfilled using telemedicine technology. It allowed teaching physicians to be present virtually for resident training programs and what not. They also continued to pay for a telehealth visit at the same rate as in-person care.”

Medicare also loosened the rules around allowing providers to treat patients in other states, he added, though state rules over licensing still held sway. Many states joined that effort by embracing license portability, allowing providers from other states to use telehealth to treat patients in their state as long as they had a valid license.

While the waivers hold power until the end of the PHE—which likely won’t take place until the end of this year or sometime in 2022—the federal government did make telehealth coverage for behavioral health services permanent in the Consolidated Appropriations Act at the end of 2020. CMS, in turn, addressed telehealth in its 2021 Physician Fee Schedule, making permanent some of the temporary changes but allowing most to stay in place through the end of the PHE.

“They call these category three, which is a new category that CMS created last year,” Lacktman said. “It's basically intended to say, ‘Look, we see some value in this during the public health emergency. We're not convinced that we should make it permanent, but we want to continue to see some more clinical evidence and benefit. And that will determine whether or not we make it permanent or whether we just say OK, when the public health emergency ends and there isn't those safety concerns about COVID, we should just go back and only cover this when it's in person."

So whether many of the telehealth services enabled by these pandemic measures stand up on their own after the PHE depends in large part on whether providers can prove their value now. That would include audio-only phone calls, asynchronous (store-and-forward) services, remote patient monitoring and many telehealth services used in long-term care facilities, federal qualified health centers and clinics.

It would also include payment parity, or the concept of having payers cover telehealth services at the same rate that they cover in-person services. 

“There are some policy reasons that people articulate in favor of or against payment parity for telehealth services,” Lacktman noted. “The most common argument made is that having payment at the same rate doesn't maintain enough of an edge for immediate cost savings on medical spend. And one of the main countervailing arguments is that the service is just as valuable and whether it's via telemedicine or in person, provided that it's medically appropriate to the patient's needs. So if [payers] were to pay less it would disincentivize providers from using this technology.”

“We'll see how it shakes out in the next 12 to 18 months,” he added. “There's a bunch of bills pending. We've seen the reaction in the provider industry and patients for using telehealth pretty widespread. But if we start to remove this external force that's preventing or hindering patients from going to their in-person clinics, we'll see how that ebbs and flows, particularly if we see a trend away from payment parity voluntarily or otherwise.”

Finally, Lacktman took note of the use of telehealth in prescribing controlled substances, particularly for substance abuse and behavioral health treatment. Federal and state governments had relaxed those restrictions during the pandemic to give providers more leeway to use programs like medication assisted treatment.

The challenge, going forward lies in trying to gauge the telehealth landscape once the PHE ends, and many of the telehealth freedoms expire. Lacktman said he wonders how health systems and vendors will react – whether they’ll find some way to continue offering telehealth services or will just roll up their programs and leave patients hanging.

“So I really think what a lot of the companies that we're working with, we're asking them, ‘Well, what are your plans? How do you plan to continue your services or model when the waivers don't exist anymore? What are you going to do different?’” Lacktman said. “And so that's something that I think a lot of hospitals or entrepreneurs should think about. Because by the time the public health emergency expires, my guess is it will have been around for almost two years, maybe even more. Which is a pretty long time in telehealth or even for many companies.”

Lacktman concluded his keynote by noting that reimbursement and access policies for telehealth, remote patient monitoring and other connected health services are very much in flux right now, and it’ll be up to state and federal lawmakers – and Congress in particular – to establish policy once the COVID-19 PHE ends. 

And now that so many providers have had the opportunity to try out telehealth and RPM, will these lawmakers continue to advocate for virtual care or shut off the spigot and watch the healthcare market struggle to adjust?

“It'll be interesting to see what the government is able to put back in the box,” he said.