Congress only has a few more months to ensure expansive telehealth access continues (updated)

Note: This article was updated Sept. 18 and Sept. 19 with information about new telehealth legislation. See the updates below.

The clock is ticking on efforts to maintain the telehealth flexibilities that have been in place since the start of the COVID-19 pandemic, with advocates hoping Congress will act before year’s end.

Key waivers will conclude at the close of 2024 unless legislation is passed to extend them. Congress faced a similar scenario in 2022 and passed a two-year extension in an omnibus bill during the post-election lame-duck session.

Among the flexibilities scheduled to expire is nationwide Medicare payment eligibility for services furnished to beneficiaries in their homes. Established law allows for reimbursement only for telehealth provided to patients living in specifically designated rural areas, and only while those patients are visiting a medical facility.

A few services will remain universally reimbursable, including behavioral health services, along with monthly clinical assessments for end-stage renal disease. But the usual restrictions will apply starting in 2025 for other services if Congress does not move on the issue.

Legislators are aware of the situation, as indicated by the dozen or so bipartisan bills that have been drafted to extend telehealth waivers. Although some bills would codify the policies permanently, those that have advanced out of committee limit the extension to two years.

In testimony for a congressional hearing that took place in April, a health system leader said an extension is vital and ideally would be permanent.

“The urgency for Congress to act on Medicare telehealth flexibilities cannot be overstated,” Eve Cunningham, MD, MBA, chief of virtual care and digital health at Providence, said in testimony to the House Energy and Commerce Committee’s Health Subcommittee. “Our healthcare systems and providers need clarity and stability to implement and maintain the administrative and medical practices that ensure seamless, quality care for millions of Medicare beneficiaries nationwide.”

The state of affairs

After surging to 48% in 2020, the share of Medicare Part B beneficiaries who received care via telehealth dropped to roughly 25% in 2023, according to the latest trends report from CMS. Quarterly, the peak of 47% in Q2 2020 was short-lived, with the share falling below 30% during the second half of the year and hovering in the 12% to 13% range during the final three quarters of 2023.

But even those lower numbers are substantial.

“Patients and clinicians want telehealth to remain an option, and policymakers will find it difficult to take away telehealth,” Ateev Mehrotra, MD, professor and chair at Brown University’s School of Public Health, said in testimony for the Health Subcommittee hearing.

The House has queued up two bills that would authorize expanded telehealth availability through 2026. A bill unanimously passed in May by the Ways and Means Committee would allow all Medicare patients to continue receiving telehealth services in their homes. Another provision would continue reimbursement for audio-only services if that’s how the patient prefers to connect, as long as the clinician has the capability to connect by video. The legislation also includes clauses to improve telehealth services for individuals with limited English proficiency.

A separate bill unanimously passed by the Health Subcommittee contains many of the same provisions as the Ways and Means Committee’s bill. The subcommittee bill is a scaled-down version focused on telehealth, whereas the other bill extends the Medicare hospital-at-home waiver for five years and payments to low-volume and Medicare-dependent hospitals through FY25.

On the regulatory front, CMS has drafted policies to promote the continued widespread use of telehealth in 2025 if Congress takes the needed legislative action. The latest proposed rule for Medicare physician payments includes provisions that would maintain key waivers.

Promise and peril

Hesitation to permanently expand telehealth within Medicare stems from concerns about driving up costs and creating greater potential for fraud, waste and abuse.

The HHS Office of Inspector General examined program integrity risks among providers that furnished telehealth services during the first year of the pandemic. Among more than 742,000 that billed Medicare for a telehealth service, 0.2% (1,714) engaged in questionable billing practices, most frequently by charging a facility fee along with the telehealth service.

“It appears that telehealth can be used to deliver care without actually raising those serious [program integrity] concerns,” Rep. Brett Guthrie (R-Ky.), chair of the Health Subcommittee, said during the April hearing.

One example of approaches to limit fraud and waste would be to require an in-person visit before a physician can order specific high-cost tests, Mehrotra said.

In an August viewpoint article (login required) that he co-authored in JAMA, Mehrotra called for reframing the telehealth debate around the question of whether it increases value, i.e., by improving healthcare at a reasonable cost. It’s not realistic to expect telehealth to lower costs, given the increase in access and utilization that surely would result from a permanent expansion, the article states.

“To reduce spending, Medicare could reimburse only for clinical circumstances in which telehealth visits are likely to substitute for in-person visits and simultaneously reimburse telehealth visits at a substantially lower rate than comparable in-person visits,” wrote Mehrotra and Lori Uscher-Pines, PhD, of the RAND Corporation.

“We do not advocate this approach because telehealth’s greatest strength is its ability to increase access and convenience, and poor access to care is a critical problem in many communities,” they added.

Settling on a payment rate

After questions over whether telehealth payment parity would continue to apply once the PHE ended, CMS incorporated the non-facility Medicare physician payment rate for 2024 (using modifier 93 or 95 for hospital-based clinicians).

Any move to make Medicare coverage of telehealth services permanent is likely to include a rigorous assessment of payment rates, namely how telehealth reimbursement should compare with in-person payment levels.

In his congressional testimony, Mehrotra said telehealth visits should be paid at a lower rate. He noted such an approach would come over the objections of clinicians and administrators who say their practice expenses do not decrease when they add telehealth services to a menu that continues to include in-person visits.

During the hearing, for example, Lee Schwamm, MD, professor and associate dean at the Yale School of Medicine, said providers “can’t simply take a 50% pay cut when they could be seeing an in-person patient at full rates. … Right now, the cost is actually higher because we have to [maintain] full in-person capability and telehealth capability. If we have a permanent roadmap, we can start to actually readjust the expense base and figure out ways to deliver telehealth at lower cost.”

Mehrotra, though, cautioned against using telehealth to cross-subsidize in-person visits because doing so “will create distortions in the market. Paying the same amount for telehealth visits will also give virtual-only companies a competitive advantage and incentivize brick-and-mortar clinicians to give up their practice.”

He said a 25% reduction in payment for services provided via telehealth is generally “a reasonable starting place” but should be adjustable based on data that comes in regarding practice expenses.

Sept. 18 updates

A bill that advanced through a House committee last week would bar providers from charging facility fees for telehealth services.

The Education and Workforce Committee unanimously passed the Transparent Telehealth Bills Act, which would prohibit ERISA-covered health plans from increasing payments to providers that furnish telehealth services while based at a healthcare facility starting in 2026.

An amendment included with the latest version of the bill would prevent a facility fee from being charged when the clinician bills independently for the telehealth service.

The bill’s passage at the committee level does not mean it will be included as part of a larger telehealth package that Congress is expected to consider before the end of the year. But the sweeping bipartisan support gives it momentum a year after site-neutral payment provisions passed the House as part of a larger bill on price transparency. That 2023 bill, the Lower Costs, More Transparency Act, has not received formal consideration in the Senate.

Hospital advocates quickly came out against the new telehealth bill, which “fails to recognize and provide payment for the unique resource costs that hospitals face in furnishing telehealth evaluation and management services,” according to comments submitted by the Federation of American Hospitals.

Similarly, the Association of American Medical Colleges said the bill “ignores the importance of facility fees to help offset the costs of providing care and the very real and increasing costs of maintaining facilities, retaining staff and investing in technology.”

Sept. 19 updates

The Health Subcommittee bill referenced above in the original article was unanimously approved Sept. 18 by the full Energy and Commerce Committee.

One new amendment to the bill is likely to generate pushback from hospital advocates, however. It would require each off-campus outpatient department of a provider to bill Medicare using a unique identification number starting in 2026 and to formally attest to compliance with the provision.

A similar clause is in the Lower Costs, More Transparency Act. With respect to that bill, advocates said the increased transparency would not be worth the administrative burden that would accrue on hospitals and health systems. Another concern is that the information gathered from the mandatory reporting might spur Congress to ramp up efforts to implement site-neutral payment policies.