Over 400 Organizations Urge Congress to Address the Medicare “Telehealth Cliff”

On July 26, 2021, the eHealth Initiative submitted a letter to congressional leaders, signed by over 400 healthcare and technology organizations, urging Congress to permanently expand access to telehealth for Medicare beneficiaries. This is the second such letter submitted to Congress by the eHealth Initiative.

As previously described by Frier Levitt, since the onset of the COVID-19 public health emergency, healthcare providers have operated under a variety of waived or relaxed regulatory requirements, particularly as it relates to licensing, telehealth, and Medicare and Medicaid reimbursement requirements. However, as the pandemic wanes, many regulatory waivers are set to expire unless permanently adopted by each jurisdiction.

In the most recent letter, the organizations state that “without action from Congress, Medicare beneficiaries will abruptly lose access to nearly all recently expanded coverage of telehealth when the COVID-19 PHE ends.” Moreover, any such abrupt halt “would have a chilling effect on access to care across the entire U.S. health care system, including on patients that have established relationships with providers virtually, with potentially dire consequences for their health.”

The letter makes several requests of Congress with respect to Medicare, including:

• A request to permanently remove the geographic and originating site restrictions;
• A request to grant HHS and CMS’ authority to expand the types of reimbursable encounters and modalities;
• A request to ensure that Federally Qualified Health Centers, Critical Access Hospitals, and Rural Health Clinics can furnish telehealth services after the conclusion of the public health emergency; and,
• A request to expand coverage for behavioral or telemental health services, without requiring the beneficiary to first engage in an in-person encounter.

The requests, particularly the removal of geographic and originating site restrictions, have been the subject of continued interest by both advocacy groups and elected officials.

Key Takeaway

The expiration of the federal public health emergency is likely to significantly impact telehealth providers, particularly those who treat Medicare beneficiaries, and those who prescribe controlled substances. Additionally, the expiration of state declarations will affect unlicensed providers treating patients in states that operate under waived or relaxed state licensing requirements. Healthcare providers reliant on COVID-19 regulatory waivers should take steps to prepare for a variety of scenarios, including a possible “telehealth cliff,” wherein waivers, particularly Medicare waivers, abruptly expire without transitionary or alternative mechanisms to enable the continued access to care via telehealth.

Finally, the expiration of telehealth waivers may impact more than just prescribers. As we previously described in a Total Pharmacy article concerning pharmacies and telehealth, any pharmacy that receives prescription orders resulting from telehealth may have a duty to validate the encounter conducted by the virtual prescriber. Generally, a prescription may only be issued as a result of a bona fide practitioner patient relationship, which cannot be formed if the provider is not permitted to engage in professional practice in a particular state. As such, pharmacists have certain duties to validate prescription orders they receive, especially if the pharmacy is closely involved in any telehealth model. The expiration of telehealth or controlled substance waivers may place unprepared pharmacies in a position of uncertainty, as pharmacists may be required to evaluate several aspects of a prescription’s validity, including: (i) a prescriber’s licensing status in the applicable state; (ii) the ability of the prescriber to issue controlled substance prescription orders; and (iii) whether the prescription resulted from a bona fide prescriber-patient relationship. These inquiries can appear cumbersome, but pharmacies must be cognizant of the scope of their obligations pursuant to applicable law prior to dispensing.

Contact us to discuss how the expiration of COVID-19 waivers could impact your practice.