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Top Ten 2021: Massive Expansion in Telehealth Ushered in by the COVID-19 Pandemic

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Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2021. In the fourth episode, Martie Ross, PYA, speaks to Sunny J. Levine, Foley & Lardner LLP, about the ways in which the health care industry has been transformed by the expansion of telehealth over the past year. They discuss the various waivers at the federal and state levels that have expanded telehealth, developments related to prescribing practices and licensure requirements, the debate over parity legislation, and issues related to the rise of remote patient monitoring. Sponsored by PYA.

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Speaker 1:

The American Health Law Association is pleased to present this special series highlighting the top 10 issues of 2021, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year. Support for A H L A in this series is provided by P Y A, which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business valuations, and fair market value assessments, and tax and assurance. For more information, visit pya pc.com.

Speaker 2:

Welcome everyone to episode four of a h l a's podcast series. Um, on the top 10 health law developments for 2021, I am Marty Ross with p y a. I'm joined today by Sonny Levine from Foley and Larner, Sonny Practices with the firm's telemedicine and digital health industry team. And Sonny authored, uh, the section in the top 10 article on telehealth and certainly 2020 was a wild year for telehealth. And we'll talk with Sunny about some of those developments as well as predictions for 2021 going forward. So, hello, sunny and welcome.

Speaker 3:

Hi. Thank you for having me, Marty.

Speaker 2:

That's great. Uh, well let's just, let's jump right in. Um, you know, there's a lot of waivers and a lot of interim rules and a lot of agency notices that came out about this time last year, in fact, uh, regarding Medicare coverage for telehealth and how it would be expanded, uh, during the pandemic. Can you kinda give us a, a where we are today, sort of overview o on Medicare coverage for telehealth?

Speaker 3:

Sure, yeah, absolutely. So as we all know, to 2020 was, you know, a wild year on lots of, um, lots of accounts. Um, but starting on January 31st, 2020, that's when the Covid 19 PhD was first declared. Um, since then, as Marty described, it states, and also on the federal level, there have been several waivers that have dramatically changed the telehealth landscape. Um, and you know, one of the most key and highlighted issues has been Medicare. Uh, previously Medicare had a pretty stringent definition of the services that would be considered telehealth and be reimbursed, um, under the, the fee for service schedule. Um, this included some restrictions as far as, you know, geographic restrictions, and then also the type of services that would be offered, um, but come the PhD and due to the need for social distancing, um, and in a way to encourage beneficiaries to utilize telehealth services, CMS expanded the list of telehealth services that it would reimburse, um, very dramatically actually. Um, these services, um, they would usually provided in person, but instead, um, they can be used via telecommunications technology and reimbursed at the full in-person rate. So several services were added to the telehealth list on an interim basis. And then CMS also expanded the list of permissible telehealth providers and broadened the availability of other modality types. So for instance, the availability of audio only telehealth services for Medicare beneficiaries. Um, so under the recently issued 2021 physician fee schedule, final rule, telehealth services were grouped into three main categories. Um, the first one is the permanent code, so nine codes that will become permanent even after the P H E N. Um, the second grouping would be the 74 codes that will be removed when the PhD expires. And then finally the third, um, grouping or category is the 13 codes that are added to the list on a temporary, temporary basis. So these are considered category three codes and are subject to more, uh, research and understanding of kind of what these codes will do and, you know, the cost and the benefit analysis of adding these codes on a more permanent basis.

Speaker 2:

Oh, lot's going on there. Um, so Medicare is only one payer, although it's obviously a dominant payer for, for many providers. But what about in the Medicaid space? Do we also see expansion of telehealth there?

Speaker 3:

Yes, absolutely. Um, we've seen significant expansion, um, with state waivers to the Medicaid program, um, to enable the use of telehealth at each state. It administers telehealth in their their own way and each state administers their own Medicaid program. So we've seen a significant, uh, expansion as far as particular with modalities, um, so acceptable modalities to provide telehealth treatment. And when, when we say modalities, we mean the type of communication technology that a provider can use when treating a patient. So we usually see them group grouped into a few categories, um, including the synchronous real time audio video interaction that's kind of like these zoom calls that we're all so fond of. Now, um, the other kind of a lower modality standard would be something like an interactive audio. So that modality utilizes both an interactive audio component, but also includes some sort of extrinsic information to some sort of data that's clinically relevant to the patient and treatment of that patient. So for instance, a patient's medical records or if it's a dermatology visit, some sort of high definition, uh, photograph that would, uh, provide the provider enough information, um, that they would normally utilize to make their treatment recommendations. Um, further down the line, there's, uh, lesser modalities such as store and Ford, which is also considered, uh, re also, uh, referred to as Thorn Ford asynchronous. So this is the kind of what we see online, often with the advertisements for the hymns or the get Romans, and it utilizes a questionnaire that's branching, um, that includes questions for the patient, then the patient will submit that information along with some clinically uh, relevant information to the provider. And based on that information that was stored and forwarded to the provider, the provider will make a treatment recommendation. And then fi finally, there's audio only, and this is generally just favored, um, in most states, and that's just the, the telephone call. So there's no additional information used. It's, it's just the audio interactions. Um, during the PhD we've seen with several state licensure laws and telemedicine practice standards, but also Medicaid, um, programs that they've reduced the, uh, the modality requirement from, you know, typically like in the audio video synchronous, and it's a gold standard in the industry to lesser modality standards, for instance, like a store forward or, you know, allows the use of maybe audio only, um, in order to increase, you know, again, access to telehealth for patients that may not have access to, you know, bandwidth that will allow that, uh, much more, uh, I guess comprehensive telehealth interaction,

Speaker 2:

You know, re regardless of what modality used, you still can't lay hands on the patient. And I know a lot of states have had restrictions about prescribing practices and whether you could prescribe certain medications, um, relying solely on a telehealth visit. What, what's happened in that space during the public health emergency?

Speaker 3:

Sure. Yeah. So this is one of the major changes that, uh, really enabled a lot of providers to treat patients, um, where they previously wouldn't have been able to. So, uh, with the waiver, with the, uh, PhD declaration da, the drug enforcement agencies, they issued their own waiver, two important waivers, um, on remote prescribing. Um, one of them deals with, I'm sorry, this is ro, remote prescribing of controlled substances. Um, previously under the federal Ryan Hate Act, providers were required to have an in-person, uh, visit an exam of the patient prior to issuing an initial prescription, um, for controlled substance use telemedicine. So there's certain, uh, exceptions under that general prohibition. Um, and one of them actually was triggered, it's the, the emergency exception. So because of this emergency exception that in person prior, uh, visit was waived during the p e, and instead, providers are allowed to now issue a prescription for controlled substances via telemedicine. Um, that's not just a a blank waiver though, so it would have to still be, uh, the prescription still needs to be, uh, made using realtime audio video. Synchronous interaction has to be for a legitimate medical purpose, also needs to follow all the requirements of state law. So while the federal waiver allows for this remote prescribing of controlled substances, we still need to look at the second layer and that the state level laws and states have, uh, state by state basis, some states have waived any requirement for an in-person visit. Some states have not. So it's really, you know, it's kind of a twofold conversation. But regardless, the federal waiver was a, a very big move that really opened up access to treatment for a lot of patients that, you know, a lot of them required this controlled substance in order, you know, to maintain stability. And so this was a very big, big move on, you know, deas part. Um, and secondarily, uh, in order to prescribe controlled substances, um, on a federal level, each provider needs to be licensed in the state that they will prescribe in, um, with the federal dea, DEA has also waived that requirement for the duration of the public health emergency, um, and allows if a provider's only registered with the DA in one state, they will then be able to prescribe in any other state. So that that was a, and also a, a great loosening up of, um, these requirements that, you know, enables patients to receive treatment that, you know, lifesaving treatment in many times and provider to providers to expand their, their geographic footprint.

Speaker 2:

Yeah. Let, let's follow up a bit there on licensure, because that's, as you know, back before, uh, pre covid, that always was an issue of whether a provider furnishing services via telehealth, um, had to be licensed in the state in which the patient was physically present, um, which is both, as I understand, both a federal issue and a state law issue. So where does that stand today, um, in terms of licensure requirements for telehealth?

Speaker 3:

Sure, yeah. So the licensure requirements also, right, like as you mentioned, Marty, it really depends on, yeah, it's a stay by stay basis, but generally the rule is that the patient has to be, or the provider needs to be licensed in the state that the patient is located at the time of the telehealth interaction. So regardless of where the provider is actually located, the key element is looking to where the patient is located at the time of that telehealth interaction. Um, we've seen, you know, a state by state basis, but largely, you know, it's, it's almost an overwhelming, um, amount of states that have issued these licensure waivers. So these waivers often provide, you know, if a physician, for instance, is licensed in Florida where I live, they would be able to treat a patient in, let's say, Kansas, if Kansas is issued that waiver. Um, again, it's on a state by state basis, and the requirements for licensure really depends. So some states are considered like self effectuating waivers, so there's no notification or any kind of application that the physician we would need to complete in order to provide services, um, within the, the state that they're not licensed in. But then other states have, you know, different processes. For instance, California is requiring the out-of-state providers to fill out an application form that just kind of provides basic information. It's, I think it's a one or two page application. It's not so extensive, but, uh, it, it still has that ability to allow a provider if approved to it provides telemedicine services even though they're not licensed in California, for instance.

Speaker 2:

Well, it, it seems both at the federal and the state level, um, regulators have been trying to do everything they can to eliminate those obstacles to the delivery of telehealth, but at some point, uh, this public health emergency is going to end, and at least at, you know, at this point, H H s is told the governors to expect the PhD a to continue through the end of 2021, but the calendar will flip over. We hope it, we'll get to 2022. So let's get your crystal ball out. Um, how much of this is, um, how many of these waivers may become permanent? Uh, how much do you think we're gonna go backwards in terms of telehealth after the PhD's O over?

Speaker 3:

That's a great question. Um, we, we've been asked that, you know, a lot recently with, with clients because right now it's kind of the, it is a great time to be practicing telemedicine with so many flexibilities that have been issued on a state and federal level. Um, and it, it's really hard to tell, I mean, the current landscape as is pre covid at least, was quite restrictive and really didn't take into account a lot of technological improvements that we've made that you really allow for a physician or clinician to provide a, you know, a wholesome visit that's, you know, very comprehensive via, you know, digital technology. It's, it's definitely, you know, more convenient for the provider and, you know, for the patient often have much more convenient. So we've seen that, you know, the utilization rates have just been through the roof, patients are liking it, and providers are also, you know, increasingly liking it and becoming more comfortable with it. So it's going to be hard to roll back a lot of these flexibilities to the point they were pre covid just given the providers and patients are, are getting used to it and they're, they're really liking it. So we'll see how much of it is, is able or able to kind of, um, to roll back or how much we'll see pressure on legislators in order to make some of these waivers permanent. And we have seen at least, you know, some states have made some of these flexibilities permanent changes. Um, we've seen that a lot, uh, with a lot of our clients in the substance use disorder treatment space. Um, pre covid, you know, again, there was, there's lots of requirements on the state and federal level as far as prescribing and also licensure, um, physical brick and mortar requirements. But with the public health emergency, an unfortunate, uh, side effect of that was also a steep incline in substance use disorder overdoses and in, in issues relating to substance use disorder, you know, partially due to kind of the confined, the confines of staying inside and social distancing, um, during, during the coronavirus. So, uh, states in turn have issued waivers that allow remote prescribing of, of PPA morphine and other substances used in medication assisted treatment. And we've also seen that on the federal level, that allows for a, a vast expansion and the ability to offer substance use disorder treatment via telehealth without that physical kind of weighing down barrier of a brick and mortar location. Uh, so we, we've seen, for instance, New Hampshire has issued, um, a, a, a recent law that makes a lot of the waivers that were issued, you know, on a temporary basis, they make them permanent. So we'll see how many states follow suit and also on the federal level, um, what actually passes and, you know, how much pressure is put on these legislators to, to make these flexibilities permanent.

Speaker 2:

Okay. So I've heard the term batted around, um, you know, the need for parody legislation. Um, can you explain what that means?

Speaker 3:

Sure, yeah. So I think we're referring to commercial payers. So these are the commercial carriers like Aetna or, um, other health plans. Um, previously the way that telehealth services, you know, pre covid, again that covid service or telehealth services are reimbursed, was on a state by state level. Each state was allowed to determine, uh, if they were gonna reimburse, um, if they were gonna reimburse telehealth services or not, or cover telehealth services and state laws mandate if a private payer could exclude these telehealth services or if they were required to cover telehealth services. Um, and then the second part of that is parody. And so that is, would these commercial carriers in these states be required to pay and reimburse a provider for offering telehealth services to the same extent as they would for in-person services? Um, pre covid, we saw, you know, throughout the map, there's, there's lot the patchwork, you know, some states have telehealth coverage laws, some don't. Um, as of today, around 43 states have enacted some sort of telehealth coverage legislation, but even within that legislation, there's significant variation on the types of services that are covered. And again, if there is that payment parody, um, we've seen through covid a lot of states, uh, waiving requirements or adding requirements, um, through like an executive order or an emergency action that mandates, uh, any commercial payer to reimburse telehealth services to the same rate as they would in-person services. So that has been a sweeping change. Um, oftentimes, you know, one of the hurdles towards offering a telehealth program or offering telehealth services for a practitioner is they're worried if they're gonna get paid. Um, and this change of the law has, you know, enabled these commercial providers, these commercial payers to pay these providers for offering telehealth services, you know, at the same rate as in-person services. So it provides an incentive for these providers to add telehealth to their, uh, general offering.

Speaker 2:

Um, you know, up to this point we've been talking about telehealth, which, you know, at least in my head, um, is the, what would otherwise be a face-to-face visit that you utilize a technology so that it, you can have the provider and the patient at different locations, but a, I guess a close cousin to telehealth is virtual services, which are now the use of technologies in ways that don't replace what would've been a face-to-face visit. But, um, for new opportunities for patient physician interaction, and let's put in that category, the sort of rise of remote patient monitoring. Um, can you just give us a kind of a glance into what's going on in that space right now in terms of regulation or reimbursement or just the growth in the industry?

Speaker 3:

Sure, yeah. And remote fleet patient monitoring is right, as you mentioned Marty, it's the ability to use some sort of, you know, remote sensors or some kind of, uh, kind of extrinsic, um, measuring device, um, for a patient in order to monitor certain, uh, certain, I guess, uh, STA statistics. So for instance, like a blood pressure cuff or for a diabetes patient, some sort of monitoring device. Um, we've seen that, you know, it has expanded substantially this year, but there's still plenty of room to grow. So there's been recent payment expansion for RPM services, both with these commercial coverage laws that we just spoke about in parity laws that are expressly adding remote patient monitoring services, um, under the umbrella of what is covered as telehealth services. Um, and also from, you know, a Medicare perspective and Medicaid perspective. But that being said, you know, there's still plenty of room to grow. Um, RPM has not had its quote unquote breakout year yet, um, as far as widespread use and coverage parody. So there's still plenty of room to grow for RPM services, although it's definitely a, you know, an option for patients that, and providers that, um, offers the ability to provide some, you know, excellent services and real-time monitoring that can help control diseases and, um, generally keep the provider updated on the patient status.

Speaker 2:

Wow. Well, sunny, thank you so much. I mean, uh, telehealth and virtual services, it's just as you said, a wild ride, Anne, I think that's going to continue going forward, so I'm sure we'll have many opportunities to learn from you and, uh, about these topics. And thanks so much for joining me today.

Speaker 3:

Absolutely. Thank you so much for having me, Marty.