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 It aims to remove outdated restrictions that limit Medicare from reimbursing for telehealth use by allowing accountable care organizations (ACOs) to use telemedicine as a tool to monitor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.