By Sandra Durkin

This week marks the anniversary of the World Health Organization declaring COVID-19 to be a pandemic, the United States entering a state of national emergency, and the Centers for Disease Control and Prevention (CDC) issuing the first set of restrictions in the United States. As we acknowledge these dates, and ruefully reflect on the emails from colleagues and signs hanging on the doors of our favorite restaurants saying, “Stay safe, we’ll see you in two weeks,” it is impossible not to reflect on how much our lives have changed in the last year, and to evaluate how many of those changes will be with us for the long term. We may disagree on when restaurants should reopen and kids should go back to school, but one thing on which patients, providers, plans, and lawmakers seem to agree is that telehealth is not going away.

Telehealth is, simply put, the use of digital technologies to deliver health care services to patients in a separate location from their providers. The shift to telehealth began well before the pandemic. Before 2019, seniors enrolled in Original Medicare were eligible to receive care via telehealth for certain services and only if they lived in rural areas. In 2019, CMS expanded access to telehealth by allowing Original Medicare to pay for short, patient-initiated check-ins with healthcare practitioners, but telehealth was still limited in several key ways: patients had to have access to an interactive audio and video telecommunications system that allowed for real-time communication and, for most services, Medicare patients had to leave their homes and receive telehealth services at a medical facility.

Medicare Advantage (MA) enrollees have had expanded access to telehealth benefits compared to Original Medicare, as MA plans were allowed to offer additional telehealth services as supplemental benefits and, beginning in 2020, were allowed to offer telehealth benefits as part of their basic benefits package to members regardless of where they lived. Thanks to this new flexibility, by 2020, over half of MA plans offered these additional telehealth benefits to up to 13.7 MA enrollees.[1]

When the COVID-19 pandemic made even routine in-person visits to a medical facility a health risk, increased access to telehealth services became critical, and the federal government implemented temporary measures to remove legal and regulatory barriers and encourage the use of telehealth services. For example, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the Department of Health and Human Services (HHS) authority to waive statutory Medicare coverage requirements for telehealth (Section 3703), authorized Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to provide Medicare-covered telehealth services (Section 3704), and temporarily waived requirements for face-to-face visits between home dialysis patients and physicians and for hospice certification (Sections 3705 and 3706).

With its new waiver authority, CMS promptly issued temporary measures to make telehealth available to Medicare beneficiaries outside of designated rural areas, to receive telehealth in any location, including their homes, to expand the types of services that beneficiaries can receive via telehealth, and to allow some types of services to be provided using traditional audio-only telephone technology. CMS also began paying for telehealth services at the same rate as similar in-person services, and the HHS Office of Inspector General (OIG) authorized providers to reduce or waive cost-sharing for telehealth visits paid by federal health care programs.

Telehealth use exploded. In the first three months of the public health emergency, nine million Medicare beneficiaries received telehealth services.[2] Over three million beneficiaries received services over the telephone, i.e., without using video technology, and beneficiaries living in urban areas were more likely to use telehealth services than those living in rural areas (30% compared to 22%).[3] These figures demonstrate that the temporary waivers are serving their intended purpose: to broaden access to Medicare telehealth services. They also indicate a strong demand for telehealth that is likely to remain even as people get vaccinated and states lift restrictions. Indeed, survey data suggests that patients expect to use telehealth after the pandemic ends.

Patients are not alone in this support. During confirmation hearings, the HHS Secretary nominee Xavier Becerra expressed “wholehearted” support for the continued expansion of telehealth. Providers represented by the American Medical Association and the American Hospital Association support the Telehealth Modernization Act, which was reintroduced with bipartisan support in both the House and the Senate last month and would make permanent many of the provisional measures put in place at the beginning of the pandemic. Among other things, the bills propose to eliminate geographic and originating site restrictions for Medicare telehealth, designate homes as eligible distant sites, give HHS authority to permanently expand the types of services that can be provided virtually as well as the types of providers eligible to deliver those services. Medicare Advantage advocates also support making these changes permanent.

For all its upsides, policymakers harbor some concerns about expanding telehealth, including the potential for fraud and overutilization. While fraud occurs in other contexts, telehealth technology expands the reach of unscrupulous providers, and could lead to an increase in billing fraud, as noted by the OIG. There is also a need to balance concerns about quality of care against limitations in access to the technologies that make virtual care more effective, such as broadband. Reflecting some of these concerns, in a final rule issued in December, CMS suggested that it would not continue to reimburse audio-only telehealth services after the public health emergency is over but created a new code for short audio check-ins to determine whether in-person services are needed.

Health plans have a significant role to play in expanding access to and addressing risks associated with telehealth. MA organizations can continue to offer coverage for telehealth over and above what is available under Original Medicare. Health plans seeking to work with providers to expand on telehealth offerings may look to new safe harbors for the Anti-Kickback Statute (AKS) finalized by the OIG late last year. The new safe harbors offer several pathways for healthcare organizations to collaborate to develop platforms for delivering virtual services to patients, including a new safe harbor for Patient Engagements and Supports that would allow digital health companies to provide digital health technologies directly to patients, a new Care Coordination safe harbor that would permit participants to a value-based enterprise to exchange in-kind remuneration, which could include digital health technologies, and an exception to the civil monetary penalty rules for providing telehealth technologies for in-home dialysis patients. Health plans should not only review their existing provider arrangements to determine whether they comply with the AKS but also consider how they may leverage the new safe harbors to increase access to care.

As they work to expand access, health plans should evaluate their compliance and fraud, waste, and abuse programs to ensure that they address the risks presented by virtual care. Are employees and members aware of the signs of fraudulent schemes involving telehealth? Does internal monitoring and auditing include evaluating claims data to identify potential fraud by providers of telehealth services? Health plans must also monitor quality of care and privacy issues in telehealth.

A year into COVID, we are still absorbing the ways the world has changed shape, and there is a lot we don’t know. Many of us don’t know when we will get a vaccine, when we will go back to work, when our kids will go back to school, or when we’ll see our families again. There are a few things we know for sure, though, and one of them is this: telehealth is here to stay.

[1] Seema Verma, “Early Impact of CMS Expansion of Medicare Telehealth During COVID-19,” Health Affairs (July 15, 2020), available at https://www.healthaffairs.org/do/10.1377/hblog20200715.454789/full/.

[2] See note 1, supra.

[3] See id.