Is new federal telehealth legislation coming? Congress has asked stakeholders for input

by Robby Franceschini

April 22, 2019 — On March 12th, the bipartisan Congressional Telehealth Caucus released an RFI requesting input from healthcare stakeholders on what should be included in “comprehensive telehealth legislation” for this year. The eight-member Caucus, co-chaired by Representative Mike Thompson (D-CA) and Senator Brian Schatz (D-HI), requested data and recommendations on how telehealth and remote patient monitoring could expand access, improve outcomes, and reduce costs, as well as how these technologies might be better utilized. Stakeholder groups, including the E-Consult Workgroup, submitted responses asking for changes ranging from broader coverage of telehealth to specific tweaks to the Medicare program.


Problems with current federal telehealth law

The current federal statute which addresses, telehealth in the Medicare FFS program, imposes several barriers to broader telehealth adoption. First, the statute’s definition of telehealth is outdated and limited to provider-to-patient telehealth, leaving out applications such as e-consult. To work around this limitation, CMS has labeled e-consult as interprofessional internet consultations in its 2019 Physician Fee Schedule (PFS) to separate e-consult from telehealth services to enable reimbursement. The federal statute also includes originating site limitations for all telehealth that constrict telehealth use to rural areas. In addition, the use of asynchronous telehealth applications, such as e-consult, are limited to Hawaii and Alaska.


What’s been done to fix these problems?

Aside from the Telehealth Caucus’s RFI publication and the 2019 PFS, CMS and other groups have taken recent steps to expand access to telehealth in Medicare. Under a Congressional mandate to produce a report on telehealth in Medicare, MedPAC published its findings in 2018 and recommended that CMS expand the scope of telehealth benefits that Medicare Advantage plans can provide as basic benefits. Moreover, the CHRONIC Act passed in 2018 allowed CMS leeway to allow for expanded telehealth benefits to be offered in MA plans.

In addition, in early April CMS announced its Final Rule in which Medicare Advantage plans will be allowed to include telehealth services in their bids that go beyond originating site and geographic restrictions in Medicare FFS. While MA plans are not required to cover more telehealth services, they are no longer are restricted to covering them as supplemental benefits with rebate dollars and may have incentive to include them in their bids for capitation rate development if certain applications prove to be cost-effective.


Remaining Work for Congress

As outlines in the E-Consult Workgroup’s RFI response, there are several legislative changes Congress could make to expand access to telehealth’s benefits. It could amend the statute to broaden Medicare’s definition of telehealth to include all telehealth applications, such as those that enable provider-to-provider connections. This broader definition would update it to match the healthcare industry’s current understanding and use of telehealth. In addition, Congress could eliminate originating site and geographic limitations in the statute giving Medicare FFS beneficiaries equitable access to the same breadth of telehealth applications as those that can now be included in MA plans. Lastly, Congress could mandate coverage of telehealth in all federal programs, including Medicaid, Tricare and the Indian Health Service, where no mandate currently exists.

We will continue to watch the Congressional Telehealth Caucus’s work to bring federal support to telehealth adoption.