The Journey Back: Policy Changes
Allie Clark | 10 min read | June 30, 2020
The world has changed drastically. Seemingly overnight, we were overwhelmed by a deadly pandemic with no end in sight. The economy, daily life, and, yes, medical care had been up-ended in the wake of COVID-19. But where fear may have been present so too was innovation. Society adapted to these new challenges with ingenious solutions — we ordered groceries online, we completed school over video conferencing applications, and we sought medical care remotely.
This change is especially profound for us here at SimpleVisit as well as the rest of the telehealth community. Prior to this recent experience, we were spending a lot of time helping providers see the value in telemedicine to their patients. During the height of the pandemic effect in the United States, the demand for video visits was so high that we could not onboarding new practices quick enough. But most of the telemedicine community has settled into a rhythm, and our “new normal” has become comfortable, more routine.
During this time of forced-telemedicine, many would-be skeptics have been astonished to find how much they do, in fact, like and see worth in remote healthcare:
- Two-thirds of patient survey respondents say that COVID-19 has increased their willingness to try telehealth in the future.
- 97% of healthcare leaders report their practice has expanded telehealth access amid COVID-19.
- Close to half of all physicians (48%) are treating patients through telemedicine, up from 18% in 2018, while one-third plan to change jobs, opt out of patient care roles or retire in response to the COVID-19 epidemic.
As the US begins to reopen, many practices are starting to schedule in-person visits more often. Patients who have experienced remote care conveniently from the comfort of their own home will not only want it to continue, but may expect it.
Policies surrounding telemedicine have always varied greatly between federal laws, state regulations, licensing board rules, and private payer requirements – and now, everything has changed. Given all this, the thought of transitioning the telemedicine service that you’ve started to build during the national emergency to a permanent program post COVID-19 can seem daunting, but we’re here to help! Below we cover how policies affecting telemedicine have changed during this time and what to watch out for as our nation continues the journey back to health.
Health Insurance Portability and Accountability Act (HIPAA)
Before: HIPAA Compliance Required
Before the national emergency, HIPAA compliance was a constant source of concern for practices. Many providers chose not to do telemedicine because they were unsure of whether a telemedicine solution existed that would both fit their workflow and budget, and be secure and private enough to adhere to the law.
Now: Use Whatever You Can
As part of the declaration of the National Public Health Emergency, President Trump and the Office for Civil Rights and the Department of Health and Human Services temporarily suspended any enforcement of HIPAA as it applies to telehealth services or prosecution of applicable violations. This did not remove the law or its requirements, only meant that for the time being, providers would be safe from penalties for using whatever means necessary to continue to provide care to their patients at a time when leaving your home to go anywhere was the most dangerous thing you could do.
What to Watch: HIPAA Will Return
To be clear, HIPAA has not been suspended, and no amendment has been applied to the law – the OCR and HHS are just exercising “discretion” in how they enforce the law for the duration of the national emergency, especially for telehealth services. Most experts agree that as soon as the emergency is over, the requirements will return the same as they were before.
Many providers and practices are finding that they enjoy telemedicine; as offices open up, they are seeing the potential use cases for their “normal” practice style. Patients are also experiencing the convenience of telemedicine, and it is likely that that perk will prove to be very important to patients in terms of their healthcare choices in the coming months as we all go back to work and try to get our lives back on track.
As you consider the possibility of keeping telemedicine as a part of your service offerings post-COVID-19, here are some questions to ask yourself about HIPAA compliance:
- Is what I’m doing now secure?
- Are video visits end-to-end encrypted or in an encrypted environment?
- Did I sign a BAA with the vendor?
- Do the terms of my contract with them protect my patients’ Protected Health Information (PHI)?
Clue to the Future: Legal Insight
“Now that the providers have demonstrated the benefits and efficiencies of telehealth… there will be a push to make these changes permanent. However, I do not expect the OCR to change the actual privacy and security requirements. I expect the non-enforcement of sanctions to be fairly time limited,” says Patricia Calhoun, attorney with Carlton Fields.
Licensing: Type of Provider & Cross-State Care
Before: Variable with Low Cross-State Availability
When thinking about which licensed providers could practice telemedicine, before the national emergency every state had their own lists with very little common ground between them – nearly all allowed Medical Doctors (MDs), but after that it was anyone’s guess. Each medical licensing board also had lists of whether and how that particular type of provider could do telehealth. There were often restrictions placed on provider-types regarding supervision and location as well as use case.
Pre-COVID-19, the only way to do telemedicine across state lines was if your state was a member of a cross-state licensing compact for your provider type, and then only in another member state. There were active compacts for MDs, RNs, psychologists, Physical Therapists, EMTs and APRNs, but even the live compacts had fairly low enrollment with slow progress. The exception was the Veteran’s Administration Healthcare program – they had recently adopted a new policy called “Anywhere-to-Anywhere” that allowed VA providers to treat veteran patients regardless of where they were located.
Now: Most Providers Are Allowed, Anywhere There Are Patients
All but one state (Arkansas) and Washington DC have waived licensure requirements for telehealth in light of the pandemic that swept across our nation. Medicare is allowing all provider types to bill for telehealth services. While State Medicaid programs and private insurers have different restrictions as a rule, most are allowing all provider types, and all guidance released by applicable support organizations has recommended the same. Federal restrictions on cross-state medical practice have been waived, and most states have followed suit.
What to Watch: Who is Doing What Where?
As we move out of this time of unprecedented telemedicine adoption, take a look at who in your practice is providing care via virtual services. Look at your workflow and service offerings pre-COVID-19; talk to your stakeholders about who you want and how you want to do it post-COVID-19. Then, watch the legal changes as they come for provider restrictions. Most experts agree that after the pandemic, more providers will be allowed by the various deciding agencies than before, but which ones and how they will handle cross-state practice remains to be seen.
Here are some questions to help you with your analysis:
- Who do you want to use telemedicine after the crisis?
- Which types of providers delivering telemedicine services now are most likely to be in trouble when we return to “normal”?
- Which services delivered by which providers are used the most now that are most likely to continue after this? Some examples: Medicare Annual Wellness Visit with an RN, NP check-ups that do not require an in-person exam, medication reviews for psychiatrist MDs; LCSW-delivered therapy furnished in community clinics
Clue to the Future: Legislative Action
The Equal Access to Care Act, a bill introduced this month by two Republican Senators, aims to extend the lifting of cross-state licensing rules for 6 months after the public health emergency is declared over. This joins many other legislative and organizational moves that have started popping up throughout June leaning on decision-makers to expand these restrictions and more. The bill states:
“The location of the provision of such services shall be deemed to be the (state in which the provider is located) and any requirement that such physician, practitioner, or other provider obtain a comparable license or other comparable legal authorization from the (state in which the patient is located) with respect to the provision of such services (including requirements relating to the prescribing of drugs in such secondary State) shall not apply.”
Before: Highly Restrictive Location Requirements
Previously, where your patient was physically located made a big difference on whether you would be getting paid for your services. The model that was most frequently reimbursed was the hub-and-spoke model (site-to-site), with limited residential facility, school-based and at-home exceptions. This was one of the top barriers to more wide-spread adoption, coupled with the fact that many areas where the hub-and-spoke model was needed (specifically, rural areas) had limited broadband access and funding deficiencies.
Now: Anywhere, and Especially At Home
During the pandemic, every state has had to adopt some form of Stay-At-Home order to mitigate the spread of the coronavirus. Consequently, telemedicine in the home became the norm instead of the exception to the rule. Telemedicine has also been used much more widely in skilled nursing facilities. School-based telehealth has not seen as drastic of an increase in usage for the main reason that schools have been closed during much of this time, but as we progress in the reopening of the country, that could change – if it does, there is room in the regulation expansions to cover that.
What to Watch: At Home Is Here to Stay…We Hope
This is one of the hot topics in the discussions around which expanded regulations to keep among lawmakers and stakeholders. Most agree that whatever the specifics, the resulting lists of allowed locations for all payers are likely to be more expanded than before, but maybe not as open as it is now. Those changes also take time, time that you might not have when clients are expecting you to deliver telemedicine after the pandemic the same way they were used to receiving care during. It will be important to keep an eye out for what is covered in the home (or any site that is not considered a hub-and-spoke site), as the convenience factor that is most attractive about telehealth will be greatly diminished when they still have to go to a clinic or other patient site.
Questions to ask yourself as you watch for changes in legislation or regulations around patient location:
- Where are my patients located most often when I see them over telemedicine now?
- Is site-to-site a useful modality for my practice, or is direct-to-patient more ideal?
- Which of my payers covered in-home telemedicine before the pandemic? What were the restrictions or use cases specified for that coverage?
- What other tools or technology might be needed if I want to continue doing in-home telemedicine? (For example, bluetooth blood pressure cuffs and scales, digital thermometers, wifi-enabled glucose monitors, etc.)
Clue to the Future: Letters to Congress
“Telehealth reimbursement should not be limited to a patient’s geographical location,” notes Nadia de la Houssaye, a partner with the Jones Walker law firm. This was regarding a recent letter sent to congress lobbying for certain provisions from the Coronavirus Preparedness and Response Supplemental Appropriations Act and the Coronavirus Aid Relief and Economic Security Act to be made permanent. These provisions were originally included in the CONNECT for Health Act that was on the doclet before the coronavirus pandemic flipped everything upside down.
Before: Limited Range of Covered Services
Even with the pace that technology is advancing, the healthcare industry had yet to catch up before the pandemic hit. Regardless of what was available, more often than not, live audio-video telemedicine (synchronous) was the only modality covered. In recent months before the crisis both remote patient monitoring (RPM) and store-and-forward (asynchronous) types of telehealth had been gaining traction, but widespread adoption was a long way off. Getting paid for any other kind of remote care (such as audio-only calls) was near-impossible.
Now: Video Visits Are Still King, But All Are Covered
While live video visits have still enjoyed the top spot with numbers reaching and average of 600 visits a day per care team – with some institutions seeing over 4,000 visits per day and 70% of their total visits conducted over video. The temporary coverage of audio-only calls has resulted in a spike of phone visits as well that, during the peak, were completed as much as three times as often as video visits. Remote patient monitoring and store and forward (asynchronous) telehealth modalities have also seen a rise in utilization as many states enacted laws to cover them as well as live video visits – many private insurers have followed suit as well.
What to Watch: Meeting In The Middle
While the rise in coverage for all types of remote healthcare is encouraging, most of the laws allowing it for Medicare and Medicaid programs are limited to the duration of the public health emergency. However, most experts agree that this is another area that will be affected positively by whatever permanent changes come out of the post-pandemic legislative push. We are likely to fall somewhere in the middle, so keeping an eye on the policy changes as they happen will be key.
As you watch and wait, consider these questions:
- What was covered by your contracted insurers before the pandemic?
- What telemedicine modalities are you using currently in your practice?
- Is what you are doing working for your patients and practice? Do you want to continue them after the pandemic? If so, make sure you keep an eye on which permissions are revoked and which are made permanent.
Clue to the Future: Trends and Phases
An article titled Telehealth transformation: COVID-19 and the rise of virtual care, published in JAMIA, an Oxford Academic Scholarly Journal of Informatics in Health and Biomedicine, gives a clear view of the trajectory of telehealth use through the stages of this pandemic and can be used to look at what could be to come.
Payers: Private payers, Medicaid, & Medicare
Before: A Minefield of Differing Coverage Requirements
As indicated by the previous sections, the rules and regulations adhered to by different payers have been in disarray for a long time. Medicare covered one thing, the VA and Tricare covered another; there was no standard or consensus across states; even within one private insurance company what was covered for telemedicine and how could differ between plan types (ie., out-of-pocket/private, employee healthcare, managed health organization, Medicare Advantage, etc.) and state.
Laws governing how payers cover and reimburse the same services delivered in-person or virtually, called “parity laws”, had been passed more frequently over the year leading up to COVID-19 than before, but it was still slow-going; according to the Center for Connected Health Policy, “42 states and the District of Columbia have laws that govern private payer reimbursement of telehealth. Some laws require reimbursement be equal to in-person coverage, however most only require parity in covered services, not reimbursement amount. Not all laws mandate reimbursement.”
Now: An Open Playing Field
Coverage and reimbursement for telehealth has expanded exponentially during the pandemic, and all payers have taken up arms in the fight against the virus by relaxing and removing as many barriers to remote healthcare delivery as possible. While there are still no hard-and-fast rules as to what you can expect from state to state and company to company, many governing or advisory organizations, (eg., CMS, CDC, HHS, AHIP) issued guidance to all payers to take advantage of flexibilities allowed under the public health emergency and cover as much remote healthcare delivery as possible to support social distancing and other mitigation efforts.
What to Watch: A Return to Business as Usual?
Even if some payers keep some coverage expansions, it is likely not to be all of them. You will need to know where to find the information as policies change from each of your contracted payers so that you don’t take an unexpected financial hit and deal with a slew of claim denials upon returning to “business as usual”. As is recommended when starting to bill for telehealth for the first time, continue to check in with your payers often as the country reopens – the most up-to-date coverage requirements will be straight from them. How the different payers compare when it comes to what changes are made permanent and which are tightened up again is difficult to tell – but the more stakeholder voices that are added to the chorus the better, so find ways to advocate for what you want!
Below are considerations to keep in mind as you track the changes:
- How has your current revenue been affected by the shift to mostly-virtual care that we all have experienced, coupled with the improved reimbursement policies?
- What did your payers cover telehealth before the pandemic? Are they among those who are already talking about adopting permanent expanded changes?
- Which services are you offering now should you continue to offer, based on patient demand and satisfaction as well as what is most likely to be covered in the future?
- How will you need to code your telehealth encounters after the pandemic is over? Assuring that you are clear on your coding requirements will help to lessen claim denials even as coverage allowances decrease.
Clue to the Future: Payers Are Being Pushed
In March, BlueCross BlueShield of Tennessee became the first private payer to announce they would be making their telehealth coverage expansions permanent. “We’re committed to helping our members get the care they need, and telehealth offers them and the providers they trust with more options that fit their everyday needs,” said JD Hickey in the announcement, president and CEO of BCBS of TN. “We can’t fulfill our mission without clinicians, and we’re always looking for new ways to work together and bring better health to the people we serve together.” One can imagine, in terms of market competition, many other private payers must be feeling the pressure to do the same.
On June 9, CMS Administrator Seema Verma commented in a virtual live event, “I can’t imagine going back. People recognize the value of this, so it seems like it would not be a good thing to force our beneficiaries to go back to in-person visits.” Medicare is known for its highly restrictive location requirements, and many other payers regard their coverage policies as the “minimum coverage required.”
Start Your Journey
This has been a hard road for us all, through a global crisis the likes of which has not been seen by those living through it now. The world will never be the same, but it is an opportunity for rebirth – on a national scale as well as a personal one, for each and every one of us. As we begin this journey back to health, back to a new version of normalcy, back to the more mundane challenges of every-day life, every healthcare provider must ask themselves three questions:
What type of provider do I want to be?
What type of practice do I want to have?
What type of care do my patients want?
It’s not what happens to us but how we respond that determines our success in life. The two keys to moving forward through and beyond this crisis will be the intentionality and boldness of our response.
Listed below are sources for you to keep track of these changes so you can reach the level of intentionality we will need to create the brave new world of healthcare we have glimpsed during this time, one of unfettered access and easy communication.
Legislation & Policy Changes (Overview): https://www.cchpca.org/resources/covid-19-telehealth-coverage-policies
State Actions: https://www.cchpca.org/covid-19-related-state-actions
Federal Telehealth Coverage Policies:
HIPAA for the Department of Health & Human Services guidance page: https://www.hhs.gov/hipaa/for-professionals/special-topics/hipaa-covid19/index.html
Track cross-State Licensure compacts here:
Interstate Medical Licensure Compact: https://www.imlcc.org/
Enhanced Nurse Licensure Compact: https://www.ncsbn.org/nurse-licensure-compact.htm
Psychology Interjurisdictional Compact: https://psypact.org/
Interstate EMS Personnel Licensing Compact: https://www.emscompact.gov/#:~:text=The%20EMS%20Compact%2C%20enacted%20by,system%20in%20the%20United%20States.&text=The%20EMS%20Compact%20authorizes%20state,in%20any%20other%20member%20state.
Physical Therapy Licensure Compact: https://www.fsbpt.org/Free-Resources/Physical-Therapy-Licensure-Compact
Advanced Practice Registered Nurse Licensure Compact: https://www.ncsbn.org/aprn-compact.htm
Audiology & Speech-Language Pathology Interstate Compact: https://aslpcompact.com/
Top 5 Private Insurance Companies (to track their policy changes):
Federation of State Medical Boards
US States Modifying Licensure Requirements in Response to COVID-19
US States Modifying Telehealth Requirement in Response to COVID-19
COVID-19 national emergency legislative changes updates:
CDC Coronavirus Updates Page: https://www.cdc.gov/coronavirus/2019-ncov/whats-new-all.html
US Government Coronavirus Updates Page: https://www.usa.gov/coronavirus
National Conference on State Legislatures: https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx
Watch for Part 2 of our Journey Back Series: Practice Changes, where we will explore what changes have been made to the way you practice medicine on a daily basis and how you can prepare for the changes still to come.
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