Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 - October 2023

S. 2880: A bill to amend title XVIII of the Social Security Act to expand the scope of practitioners eligible for payment for telehealth services under the Medicare program, and for other purposes.

• As of September 27, 2023, there is no bill text publicly available.

H.R. 5611: Helping Ensure Access to Local TeleHealth (HEALTH) Act of 2023

• This bill relates to telehealth services furnished by Federally Qualified Health Centers (FQHCs) and Rural Health Centers (RHCs) under the Medicare program, and would:
  • Permanently extend Medicare coverage of telehealth services to FQHCs and RHCs;
  • Establish coverage for audio-only telehealth services;
  • Permit prospective payments for telehealth services;
  • Remove originating site requirements for telehealth services; and
  • Prohibit facility fee payments to originating sites for telehealth services, except for sites specifically noted in law.

H.R. 5541: Temporary Reciprocity to Ensure Access to Treatment (TREAT) Act

• This bill would allow mental health care providers with a valid license to provide telehealth services in any U.S. state, territory, or D.C. during an emergency period.

H.Res. 676 / S. Res. 368: Supporting the designation of the week of September 17 through September 23, 2023, as "Telehealth Awareness Week"

• This resolution would designate September 17 – 23, 2023 as “Telehealth Awareness Week.”

California

• California passed A.B. 1241, which specifies that existing law – which requires providers to offer in-person services or arrange for a referral to in-person care if they do not meet specific requirements for telehealth under Medi-Cal – does not require a physician.

Proposed Medicare Physician Fee Schedule for CY 2024

• The Centers for Medicare & Medicaid Services (CMS) released its annual proposed rule updating the Medicare Physician Fee Schedule (MPFS) for calendar year 2024, which includes various proposed changes related to the provision of telehealth, including implementing telehealth provisions included in the Consolidated Appropriations Act, 2023, (CAA 2023) and extending many telehealth flexibilities through the end of CY 2024.
• CMS also proposed changes to remote monitoring services and is seeking guidance on digital therapies.

OIG Report: Medicare Improperly Paid Providers for Some Psychotherapy Services, Including those Provided via Telehealth, During the First Year of the COVID-19 Public Health Emergency (PHE)

• The Office of Inspector General (OIG) at the Department of Health and Human Services (DHHS) released a report detailing findings from a national audit to evaluate compliance issues with psychotherapy services, including those provided via telehealth, in Medicare. The report details volume and type of noncompliance with Medicare requirements, and describes providers’ experience with providing telehealth during the Public Health Emergency.

DEA Statement on COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications

• The Drug Enforcement Administration (DEA) issued a statement from Administrator Anne Milgram which notes that the DEA has “decided to extend the current [public health emergency (PHE)] flexibilities while [working] to find a way forward to give Americans that access with appropriate safeguards.” The statement notes that DEA and the Department of Health and Human Services have submitted an as-yet-unpublished temporary rule to the Office of Management and Budget in order to extend these flexibilities beyond next week’s PHE termination date.

  For more information on the DEA’s statement, please see our May 4 newsletter.

OIG Toolkit on Analyzing Telehealth Claims to Assess Program Integrity Risks

• The Office of Inspector General (OIG) published a toolkit on analyzing telehealth claims, with the intention of assessing program integrity risks. The goal of the toolkit is to “provide an approach to analyzing claims data for telehealth to identify areas in which additional safeguards may be necessary [and] identify providers whose billing may pose a risk and warrant further scrutiny.” 

DEA Proposed Rules Regarding Prescribing of Controlled Substances via Telemedicine (here and here)

• The DEA released two proposed rules regarding telemedicine prescribing of controlled substances. The rules would require patients being newly prescribed a Schedule II-IV medication following the end of the COVID-19 PHE have an in-person evaluation prior to obtaining a prescription via telemedicine. Patients who accessed these medications via telemedicine during the COVID-19 PHE will have 180 days following the final rule to have an in-person visit.

For more information on these proposed rules, please see our March 1 newsletter.

CMS Guidance on Interprofessional Consultations (eConsults)

• The Centers for Medicare & Medicaid Services (CMS) issued guidance to clarify that interprofessional consultations (eConsults) can be reimbursed by Medicaid and CHIP, even when the beneficiary is not present.

In June 2023, MedPAC issued a report entitled “Medicare and the Health Care Delivery System.”

This report included a chapter that addresses the use of telehealth services during the public health emergency (PHE) and the impact of expanded telehealth coverage on quality and access to care, among other topics. Based on their analysis, the commission made following recommendations:

• CMS should prevent to its pre-PHE telehealth payment methodology, paying the facility rate for telehealth services;
• If CMS decides to permanently cover distant-site telehealth services delivered by Federally Qualified Health Centers (FQHCs) and Rural Health Centers (RHCs), those services should be paid at comparable Medicare Physician Fee Schedule (PFS) rates;
• Continued program integrity activities (e.g., medical record review) are recommended to ensure clinicians are accurately billing; and
• Policymakers should monitor the impact of telehealth on access, quality, and cost to inform telehealth policy.

H.R. 5163: Telehealth Response for E-prescribing Addiction Therapy Services Act

• This bill would permit synchronous telehealth evaluations, including those completed via audio-only technologies, to be used to prescribe schedule III, IV, or V controlled substances (other than methadone) to treat opioid use disorder.

S. 2447: Strengthening Telehealth and Education for Rural Communities Act of 2023

• This bill would reauthorize the distance learning and telemedicine grant program through 2028.

H.R. 4189 / S. 2016: Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act

• This bill would:
  • Permanently remove Medicare geographic restrictions and allow the home and other sites to be originating sites for telehealth services;
  • Permanently allow federally qualified health centers (FQHCs) and rural health clinics (RHCs) to provide telehealth services;
  • Expand which practitioners are eligible to provide telehealth services;
  • Remove in-person visit requirements for telemental health services.

H.R. 3875: Expanded Telehealth Access Act

• This bill would expand the types of providers eligible for reimbursement of telehealth services under the Medicare program; providers would include: audiologists, occupational therapists, physical therapists, and qualified speech-language pathologists, among others specified by the Secretary of Health and Human Services.

S. 1699: Tech to Save Moms Act

• This bill would require 1) the Center for Medicare and Medicaid Innovation to test payment and delivery models regarding the adoption and use of telehealth tools for screening, monitoring, and managing health complications during the pregnancies of Medicaid beneficiaries, and 2) the Secretary of Health and Human Services to submit a report to Congress that includes recommendations related to maternal telehealth services reimbursement, barriers to maternal telehealth service provision and access, and lessons learned from expanded access to telehealth maternity care during the COVID-19 Public Health Emergency (PHE).

H.R. 3440 / S. 1636: Protecting Rural Telehealth Access Act

• This bill would amend title XVIII of the Social Security Act, related to the delivery of telehealth services under the Medicare program:
  • Eliminate geographic requirements for originating sites
  • Permit store-and-forward technologies in all states
  • Require reimbursement for telehealth services provided in a critical access hospital
  • Require a telehealth payment rate for telehealth services furnished by a FQHC or RHC
  • Allow the use of audio-only technology for certain telehealth services including: E/M services, behavioral health counseling and education services, and other services determined appropriate by the secretary

H.R. 3432: Telemental Health Care Access Act of 2023

• This bill would remove the statutory requirement that Medicare members be seen in-person within six months of being treated for mental and behavioral health services through telehealth.

H.R. 3129: Health Care Fairness for All Act

• This bill would permanently extend Medicare’s telehealth flexibilities that are otherwise slated to end on the final day of the COVID-19 Public Health Emergency (PHE) period or December 1, 2024.

S.B. 1315: Veterans' Health Empowerment, Access, Leadership, and Transparency for our Heroes (HEALTH) Act of 2023

• This bill requires the Secretary to ensure that veterans are informed of the availability of telehealth services, and disallows the Secretary from taking into consideration the availability of telehealth appointments when determining a veteran’s community care program eligibility.

H.R. 2907 / S. 1297: Let Doctors Provide Reproductive Health Care Act

• This bill would prevent states and other entities from restricting the provision of reproductive health care services, including through telehealth.

H.R. 2573: To express the Sense of Congress with respect to Federal preemption of State restrictions on dispensing medication abortion, and for other purposes.

• This bill would express that it is the sense of Congress that:
  • Medication abortion was appropriately approved, and regulated, under the Food, Drug, and Cosmetic Act; and,
  • Approval of medication abortion under the Food, Drug, and Cosmetic Act preempts any state law establishing, implementing, or enforcing: (1) any requirement that medication abortion be dispensed in-person; (2) any prohibition or restriction on prescribing or dispensing medication abortion via telehealth. 

H.R. 12: Women’s Health Protection Act of 2023

• This bill would prohibit limitations on a provider’s ability to deliver or a patient’s ability to receive telemedication abortion services that are not otherwise applied to other “medically comparable services via telemedicine.

H.R. 1843 / S. 1001: Telehealth Expansion Act of 2023

• This bill would amend the Internal Revenue Code of 1986 to ensure that “a plan shall not fail to be treated as a high deductible health plan by reason of failing to have a deductible for telehealth and other remote care services”.

S. 731: TELEHEALTH HSA Act of 2023 / Telemedicine Everywhere Lifting Everyone’s Healthcare Experience And Long Term Health HSA Act of 2023

• This bill removes restrictions that require the originating site (i.e., the location of the beneficiary) to be in a rural area, and allows the home of a beneficiary to serve as the originating site, for behavioral health telehealth services under Medicare. The bill applies to services provided on or after January 1, 2025.
• The bill also expands the scope of required guidance, studies, and reports to address the provision of such services under Medicaid.

S. 730: Enhance Access to Support Essential (EASE) Behavioral Health Services Act

• This bill would amend the Internal Revenue Code of 1986 to “make permanent the permissible first dollar coverage of telehealth services for purposes of health savings accounts.”

S. 729: Audio-Only Telehealth for Emergencies Act

• This bill would ensure payment parity of audio-only services in Medicare during an emergency declaration.

S. 701: Women’s Health Protection Act of 2023

• This bill would prohibit limitations on a provider’s ability to deliver or a patient’s ability to receive telemedication abortion services that are not otherwise applied to other “medically comparable services via telemedicine”.

H.R. 1114: Department of Veterans Affairs Telehealth Strategy Act

• This bill would direct the Secretary of Veterans Affairs to develop a telehealth strategy for services furnished by the Veterans Health Administration and submit a report on end-user devices that facilitate telehealth services.

H.R. 1110: KEEP Telehealth Options Act of 2023 / Knowing the Efficiency and Efficacy of Permanent Telehealth Options Act of 2023

• This bill would require the Secretary of Health and Human Services, the Medicare Payment Advisory Commission, and the Medicaid and CHIP Payment and Access Commission to conduct studies on actions to expand access to telehealth services under Medicare, Medicaid, and CHIP during the COVID-19 Public Health Emergency.

H.R. 833: Save America’s Rural Hospitals Act 

• This bill would make permanent the Medicare telehealth service enhancements for federally qualified health centers and rural health clinics permanent listed under Paragraph (8) of section 1834(m) of the Social Security Act.

H.R. 824: Telehealth Benefit Expansion for Workers Act of 2023

• This bill would treat telehealth services offered under a group health plan or other group health insurance coverage as excepted benefits.

H.R. 767: / S. 237: To preserve access to abortion medications.

• This bill would ensure that the FDA risk evaluation and mitigation strategies applied to mifepristone:
  • Do not have an in-person dispensing requirement;
  • Allow for patient access via telehealth; and,
  • Allow all pharmacies that are certified to dispense mifepristone to, at a minimum, dispense and mail the medication to patients.

H.R. 635: Expanding Access to Mental Health Services Act

• This bill would allow certain HCPCS codes for behavioral health counseling and other services to covered via audio-only telehealth within the Medicare program.

H.R. 134: To amend title XVIII of the Social Security Act to remove geographic requirements and expand originating sites for telehealth services.

• This bill would extend COVID-19 PHE Medicare geographic flexibilities for originating sites permanently.

H.R. 197: Rural Telehealth Expansion Act

• This bill would enable coverage and reimbursement for store-and-forward telehealth under the Medicare program.

H.R. 207: Advanced Safe Testing at Residence Telehealth Act of 2023

• This bill would amend Title XVII of the Social Security act to provide payment for cover certain tests (e.g., serology tests for COVID-19, diagnostic tests or screenings for certain types of cancer, Haptoglobin genetic tests, prediabetes and diabetes screenings, etc.)  and assistive telehealth consultations (e.g., an evaluation and management service; the ordering of a diagnostic test or screening; an assessment of an individual succeeding the delivery of a diagnostic test or screening; etc.) under state programs.

N/A; No applicable passed legislation in 2023.