Disentangling Telehealth from the Public Health Emergency


Five Key Telehealth Takeaways from the Consolidated Appropriations Act of 2023  

On Thursday, December 29, President Biden signed into law H.R. 2716, the Consolidated Appropriations Act (CAA) for Fiscal Year 2023. This legislation provides more than $1.7 trillion to fund various aspects of the federal government, including a 2-year extension of the major telehealth waivers that were initiated during the federal public health emergency (PHE). 

The full text of the legislation, which comes in at 4,155 pages, is available here. The most pertinent section of the new law that relates to telehealth is under:

•    Title IV - Medicare Provisions, Subtitle B, Section 4113 entitled: Advancing Telehealth Beyond the Public Health Emergency. 

This aptly titled section’s major impact is it begins the process of disentangling Medicare coverage for telehealth from the PHE by citing a specific date, December 31, 2024, irrespective of when the PHE expires. 

This significant change is in contrast to last year’s budget bill in Fiscal Year 2022, where Congress included a 151-day extension after the end of the PHE for many of the pandemic-related telehealth flexibilities. The objective of that extension was to avoid what many referred to as the ‘telehealth cliff.’ Looking ahead with the CAA 2023, the federal government has moved past concerns over a potential telehealth shock to the healthcare system for when the PHE inevitable ends. The extensions for the telehealth waivers granted under the CAA 2023 provide greater certainty around federal support for telehealth as an integrated part of the US health system that is not tied to a pandemic.  

The following are five key takeaways for what the CAA 2023 means for telehealth now and, in the near future, until December 31, 2024: 

Key Takeaway #1: Patients can continue to access telehealth from their home.
CAA 2023 lifts both provider and patient location limits as geographic and originating site restrictions will continue to be waived. 

This waiver has particular importance for Medicare beneficiaries to receive regular care from the convenience of their home or assisted living facility as older adults are more likely to have or develop mobility restrictions as well as two or more chronic conditions that require regular follow-up care. In addition, numerous studies have demonstrated an improvement in healthcare literacy, medication adherence, and chronic disease management and monitoring among older adults through telehealth. 

Key Takeaway #2: Audio-only telehealth services is allowed. 
Medicare coverage for audio-only telephone evaluation and management services, and behavioral health counseling and education services has been extended. 

Audio-only coverage continues to be an area of legislative focus given concerns regarding quality of care and potential for fraud and abuse. However, a recent research report from the Office of the Assistant Secretary for Planning and Evaluations (ASPE) finds that telehealth uptake was highest among vulnerable patients, including those on Medicaid (29.3%) and those earning less than $25,000 (26.7%) with significant differences in those lower income groups accessing audio-only telehealth versus video-enabled telehealth services. From a health equity perspective, allowing Medicare coverage for audio-only visits is a critical part of the CAA 2023 legislation. 

Key Takeaway #3: In-person visits for telebehavioral health not required under the CAA, but virtual prescribing for controlled substances still tied to PHE.  
In-person visit requires can continue to be delayed for telebehavioral health services with no requirements to have an in-person visit within six months of initial treatment and annually thereafter. 

The Office of the Inspector General published a study in March 2022 highlighting the importance of telebehavioral health for Medicare beneficiaries as no other telehealth service was more relied upon. “Beneficiaries used telehealth for 43 percent of behavioral health services, whereas they used telehealth for 13 percent of [other] office visits.”

Relatedly, many are waiting for action from the Drug Enforcement Agency (DEA) to allow telehealth prescribing of controlled substances to continue after the PHE waiver expires. The DEA has yet to publish a rule for a special telemedicine registration. Many healthcare advocacy groups, including the American Telemedicine Association and the American Hospital Association, are calling on the DEA to issue an interim plan to support continuity of care after the PHE expires and before a special telemedicine registration goes into effect.   

A registration would offer an exception to the in-person requirement under the Ryan Haight Online Pharmacy Consumer Protection Act and allow clinicians to prescribe controlled substances via telehealth without an in-person medical evaluation of the patient. Once the PHE expires, then the in-person requirement will return, and may result in interrupted care or no care. 

Key Takeaway #4: Extend pre-deductible telehealth waiver. 
Allows first dollar coverage for telehealth services for patients with high deductible health plans coupled with a health savings account.

This extension helps increase access to telehealth in the commercial market so that patients can have a telehealth visit without facing substantial out-of-pocket costs by having to meet or spend down their high annual deductible. 

Key Takeaway #5: Expand care options with eligible practitioners and hospital at home programs.
Medicare reimbursement for telehealth services provided by a physical therapist, occupational therapist, speech language pathologist, or audiologist will continue to be covered.  

In addition, under Section D, Section 4140 of the CAA 2023, Acute Hospital Care at Home waiver has been extended. This provision expands care options for patient preferences as well as helps hospitals have greater flexibility to address patient overflow. The initial waiver was promulgated in November 2020 and has seen a surge in participation to currently 114 health systems and 259 hospitals across 37 states. While, Hospital at Home programs are recent, the high uptake is producing an increasing number of positive reporting measures, including a reduction in 30-day readmissions and decrease in costs.  

The future of telehealth will be largely shaped by the passage of the CAA 2023 as these waivers can now continue with certainty until December 31, 2024. However, there are looming telehealth legal and regulatory issues still unresolved around payment parity, provider licensure, and fraudulent activity oversight, as several examples. These areas continue to evolve at the state and federal levels as telehealth becomes a permanent part of the healthcare ecosystem that is untethered to the federal PHE. 

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About the Author

Tara Sklar is the Faculty Director of the Health Law & Policy Program at Arizona Law. She also holds appointments as Senior Advisor for Telehealth Law & Policy with the Arizona Telemedicine Program and for Innovations in Healthy Aging with the University of Arizona Health Sciences. She currently serves as an expert on telehealth legal issues with the Southwest Telehealth Resource Center. Her research examines legal, regulatory, and ethical issues that arise in adapting to a diverse aging population, with a focus on health technology. She teaches courses on Telehealth Law & Policy and Aging Law & Policy at the University of Arizona.