Bottom line Recent class action settlement gives all out-of-network (“ONET”) physicians important – and often overlooked – rights under the Employee Retirement Income Security Act of 1974 (“ERISA”) in connection with repayment demands. What is this case about? After paying claims submitted…
The COVID-19 pandemic forced Congress and the Centers for Medicare & Medicaid Services (CMS) to quickly implement flexibilities to allow providers to deliver care virtually. Now many providers and patients are eager to retain access to virtual care once the public health emergency concludes but retaining these flexibilities will require Congress to intervene in some cases. Several bills do just that; however, key members of Congress are signaling that they may take a different approach rather than just passing any single piece of legislation.
Despite its bipartisan popularity, legislation that comprehensively expands access to telehealth services never advanced prior to the pandemic because of the cost associated with it. The Congressional Budget Office (CBO), the group that assigns a price to legislation, has always scored telehealth as exceedingly expensive, believing telehealth services are delivered in addition to in-person services, not as a replacement.
Data collected during the latter part of the pandemic will be useful as CBO reassesses the costs of different telehealth policies. However, experts believe there will still be significant costs attached.
To get around this, some members of Congress, including Speaker Nancy Pelosi (D-CA), have floated the idea of extending the telehealth flexibilities temporarily for a period of one or two years to collect more data on the use of these services
outside of a public health emergency. This option is still on the table, but others want to craft a more sustainable policy which would balance expansion with concerns about fraud and abuse by addressing telehealth policy-by-policy.
Some of the policies being discussed frequently include:
- Eliminating the originating site and geographic restrictions on telehealth: This may be the most popular telehealth policy among legislators and key stakeholders. Prior to the pandemic, Medicare beneficiaries were only eligible to receive telehealth services at qualified originating sites in certain geographic areas; in many cases, beneficiaries still had to travel to a location meeting these requirements for a telehealth visit. As we have all experienced, telehealth services when used appropriately provide benefit to patients in a variety of locations, including in their homes located in all areas—rural and urban.
- Maintaining coverage for audio-only visits: Prior to the pandemic, providers could not provide an evaluation and management visit by telephone, but audio-only visits became a necessity during the pandemic as many Medicare beneficiaries did not have the devices or broadband required for telehealth visits with simultaneous audio and visual connections. Many providers have reported audio-only visits have been critical to providing care for patients, particularly older Medicare beneficiaries and those to which other social determinants of health apply.
- Pay parity for telehealth visits: During the public health emergency, CMS is paying the same amount for virtual and audio-only visits as it is paying for in-person care. Congress has heard from many stakeholders about how important it is to maintain this parity post-pandemic, but Congress rarely intervenes and dictates how much CMS should pay for certain services. This issue is most likely to be left to the agency.
We will be monitoring legislative efforts to expand telehealth and keep members engaged on the latest developments.