Congressional Committees Report Telehealth Extension Bills to the House Floor

Telehealth has become an indispensable method of healthcare delivery, providing access to care and maintaining continuity of care when patients and providers are separated by distance or circumstances. The importance of telehealth was especially evident during the COVID-19 pandemic. For example, telehealth has played and continues to play a significant role in mental health services, facilitating meetings and communication between patients and providers when travel obstacles or tight schedules render in-person visits impractical or impossible. During the pandemic, the U.S. Department of Health & Human Services (“HHS”) relaxed Medicare rules to expand telehealth use. However, with the end of the Public Health Emergency (“PHE”), telehealth Medicare rules will change again on January 1, 2025, unless Congress takes action.

Permanent Flexibilities

Some of the telehealth flexibilities that were allowed during the PHE have already been made permanent:

1. Federally Qualified Health Centers ("FQHCs") and Rural Health Clinics ("RHCs") can serve as "distant site" providers for behavioral/mental telehealth services;
2. Medicare patients can receive telehealth services for behavioral/mental health care in their homes;
3. There are no geographic restrictions or "originating site" requirements for behavioral/mental telehealth services;
4. Behavioral/mental telehealth services can be delivered using audio-only communication platforms; and
5. Rural Emergency Hospitals are eligible "originating sites" for telehealth. [1], [2]

Temporary Flexibilities

The following telehealth flexibilities are currently set to expire after December 31, 2024:

1. FQHCs and RHCs being permitted to serve as a distant site provider for non-behavioral/mental telehealth services;
2. Medicare patients being able to receive telehealth services in their home for non-behavioral/mental health care;
3. Having no geographic restrictions for an "originating site" for non-behavioral/mental telehealth services;
4. Using audio-only communication platforms for some non-behavioral/mental telehealth services;
5. No requirement for an in-person visit within six months of an initial behavioral/mental telehealth service and annually thereafter; and
6. Allowing all eligible Medicare providers to use telehealth services.[3]

Over the past year, several trade associations and lawmakers have undertaken advocacy efforts and bill sponsorships to make most, if not all, of the PHE Medicare telehealth flexibilities permanent in order to promote long-term critical access to safe, affordable, high-quality healthcare. The expiration of these telehealth flexibilities starting in 2025 may present operational challenges to providers and patients who rely on telehealth. For instance, reinstituting a requirement for in-person visits, even for behavioral and mental telehealth, could affect patients and clinicians who face mobility issues, lack transportation, or live far apart, creating obstacles to accessing or continuing essential health care.

Update on Congressional Action

Since May 2024, the House Committee on Ways and Means and the House Committee on Energy and Commerce have each voted to advance legislation to the full House floor that would further delay the expiration of certain temporary telehealth flexibilities, including certain in-person visit requirements. Those bills are H.R. 8261, the “Preserving Telehealth, Hospital, and Ambulance Access Act,” and H.R.7623, the “Telehealth Modernization Act of 2024,” respectively. [4] Should either such legislation in its current form be passed by the Senate and signed into law before the new year, providers would be able to undertake or continue many innovative, convenient, and cost-effective telehealth measures for an additional two (2) years and, at a minimum, have additional time to re-evaluate care plans and health care clinical service programming and operations if all telehealth flexibilities are not made permanent in the future. However, without Congressional action, providers must be ready for the Medicare telehealth rules to change at the end of this year.

Providers and their business teams must continue monitoring telehealth regulatory developments and consult with counsel. [5]

[1] "Telehealth Policy Changes after the COVID-19 Public Health Emergency." Telehealth.HHS.Gov. U.S. Department of Health and Human Services, December 19, 2023. https://telehealth.hhs.gov/providers/telehealth-policy/policy-changes-after-the-covid-19-public-health-emergency#permanent-medicare-changes.
[2] "Telehealth Services.” Medicare Learning Network, U.S. Department of Health and Human Services, April 2024, Last Accessed September 25, 2024. https://www.cms.gov/files/document/mln901705-telehealth-services.pdf.
[3] Ibid.
[4] H.R. 7623 – 118^th Congress (2023-2024): Telehealth Modernization Act of 2024, Library of Congress, https://www.congress.gov/bill/118th-congress/house-bill/7623; H.R. 8261 – 118^th Congress (2023-2024): Preserving Telehealth, Hospital, and Ambulance Access Act, Library of Congress, https://www.congress.gov/bill/118th-congress/house-bill/8261
[5] The preceding article concerns Medicare telehealth policy only and does not address telehealth policy under Medicaid or state law. Consultation with health care counsel is recommended.