The Centers for Medicare & Medicaid Services (CMS) recently proposed a rule to allow Medicare Advantage plans to expand telehealth benefit coverage. (See alert for more detail) This proposed rule implements the statutory provisions in section 50323 the Bipartisan Budget Act of 2018. What you might not know, however, is that the Bipartisan Budget Act of 2018 is only one of many legislative vehicles by which advocates for telehealth expansion have been able to move the needle definitively in their favor during this session of Congress.

Over the past two years, Congress has shown its support for the utilization of telehealth by introducing forty-one bills that, if passed, would require Medicare to reimburse providers for their use of telehealth to treat numerous health conditions such as stroke diagnosis, mental health, chronic care management and opioid addiction treatment. Of note, the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act of 2017 was the predecessor bill that passed out of the Senate in September of 2017 and became law on February 9, 2018 as a part of the Bipartisan Budget Act of 2018.

The CHRONIC Care Act bill was introduced in the summer of 2017 by the Chairman of the Senate Finance Committee, Senator Orin Hatch (R-UT) and Ranking Member of the Senate Finance Committee, Senator Ron Wyden (D-OR). It aims to remove outdated restrictions that limit Medicare from reimbursing for telehealth use by allowing accountable care organizations (ACOs) to use telemedicine as a tool to monitor and treat their patient population and expands Medicare Advantage telehealth coverage to more patients; including stroke patients and recipients of dialysis at home. In addition, the legislation calls on the HHS Secretary to solicit feedback on what services should be treated as telehealth benefits. As a result of the CHRONIC Care Act and the Bipartisan Budget Act of 2018, you may have noticed a myriad of proposed and final rules from CMS that will change telehealth benefits under fee-for-service Medicare and Medicare Advantage, including the recently released 2019 Physician Fee Schedule and the Contract Year 2020 Medicare Advantage and Part D Flexibility Proposed Rule.

Despite these advances in defining and acknowledging the benefits of telehealth, the federal government still lags behind state and private payer efforts to expand telehealth reimbursement. In the past, promising federal efforts like the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act (S. 2484, H.R. 4442) ultimately failed to become law due to the Congressional Budget Office’s (CBO) analysis that greater accessibility to this benefit may result in more health care services and increased spending. Despite CBO’s analysis, industry groups and telemedicine providers have continued to argue that the potential upfront costs of “virtual visits” will ultimately reduce costly hospitalizations, cutting health care spending through better access and feasibility.

Passing the CHRONIC Care Act within the Bipartisan Budget Act of 2018 demonstrates Congress’ recognition that telehealth is an increasingly important component of the healthcare delivery system that focuses on value-based care. Other legislation that is consistent with these views is the bipartisan, bicameral CONNECT for Health Act legislation, which would reduce originating site restrictions for Medicare telemedicine visits. However, there is still hesitancy within the Administration and by some members of Congress to completely expand telehealth to all Medicare patients due to concerns surrounding the potential for increased spending in Medicare as a result of over utilization and potential fraud. These concerns underlie why Congress and the Administration have continued to limit the use of telehealth to a smaller Medicare Advantage population for CMS to focus on in order to prove its value before expanding the service to all Medicare beneficiaries.

The Government Affairs team at Crowell works closely with our Health Care Group to follow key legislation and policy initiatives on Capitol Hill, in state capitols, and at the White House to inform the advocacy strategies of our clients. Together, we are ready to advise on your legal operations and policy advocacy needs regarding telehealth and other health care issues.

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Traci Vitek

Photo of Jim Flood Jim Flood

Jim Flood is a partner in Crowell & Moring’s Washington, D.C. office and assists health care, energy, and financial services clients with legal, legislative, and regulatory issues. He is also chair of the firm’s Government Affairs Group.

A former federal prosecutor and counsel…

Jim Flood is a partner in Crowell & Moring’s Washington, D.C. office and assists health care, energy, and financial services clients with legal, legislative, and regulatory issues. He is also chair of the firm’s Government Affairs Group.

A former federal prosecutor and counsel to Senator Charles E. Schumer (D-NY), Jim has more than 20 years of experience assisting clients facing issues before the White House, Congress, the U.S. Department of Health and Human Services (HHS), the Centers for Medicare & Medicaid Services (CMS), the U.S. Department of Justice (DOJ), the U.S. Drug Enforcement Administration (DEA), the U.S. Food and Drug Administration (FDA), and other federal agencies. He also works with the firm’s Healthcare Group and healthcare fraud practice team to counsel clients on issues related to Medicare, Medicaid, Part D, long-term care, health care fraud, the False Claims Act (FCA), and the anti-kickback statute.

In the area of antitrust, he has advised and guided companies through public policy issues affecting mergers in the healthcare and technology sectors. In the energy sector, Jim has experience navigating renewable energy regulatory and policy matters, and he served as the General Counsel for the American Wind Energy Association (AWEA), the American Clean Skies Foundation (ACSF), and the Advanced Biofuels Association (ABFA).

In 2023, Jim was again named a “Top Lobbyist” by The Hill.

Prior to joining Crowell & Moring, Jim led all federal and state government relations for a Fortune 400 health care company with $6 billion annual revenue. Jim led the Government Affairs Department and oversaw the company’s advocacy before Congress, HHS, CMS, DEA, key trade groups, and engaged with the White House on regulatory issues. Previously, he assisted clients at Brownstein Hyatt Farber Schreck LLP, where he provided strategic government relations advice and counsel to Fortune 500 companies in the health care, financial services, and energy sectors. Prior to that, he served as an Assistant U.S. Attorney at DOJ, where he led federal and local criminal investigations of U.S. corporations and individuals, prosecuted federal white collar grand jury criminal investigations into health care fraud, securities fraud, mortgage fraud, and government contracts fraud. He tried approximately 80 federal or local jury or bench trials during his time at DOJ, and also led a two-year nationwide FCA investigation into the sale of defective bulletproof vests to federal law enforcement agencies.