Telehealth Waiver Bill Moves Forward

On September 18, 2024, the House Energy and Commerce Committee marked up and passed out of Committee HR 7623, the Telehealth Modernization Act of 2024.  The next stop for the bill will be the House floor and then, if passed, it will be sent over to the Senate. 
 
The most significant part of HR 7623 that readers may be interested in is that it extends the Medicare telehealth waivers an additional two years.  Currently, the Medicare telehealth waivers are set to expire at the end of this year. Should HR 7623 pass with no changes to this item, the new expiration date will be December 31, 2026.  The permanent telehealth Medicare policies this will impact include continuing to allow telehealth to take place regardless of location (both geographic and type of site); allowing the larger list of providers to continue to be eligible to provide services via telehealth and be reimbursed by Medicare, including federally qualified health centers (FQHCs) and rural health clinics (RHCs), occupational and physical therapists, and continuing coverage of audio-only services.  The prior in-person visit requirements for mental health visits that do not meet the geographic requirement or exceptions to it will also continue to be delayed.
 
The Acute Hospital Care at Home waiver flexibilities will also be extended but for an additional five years, ending in 2029.  However, additional studies and reports on this program would be required. One required study will specifically examine the outcomes, costs and other relevant metrics between individuals who entered Acute Hospital Care at Home directly from an emergency department and those who enter it through an inpatient hospital stay.
 
The bill will also require modifiers to be used in certain instances.  The Secretary of Health and Human Services (HHS) shall no later than January 1, 2026, establish requirements for the use of a code or modifier when services via telehealth are provided by:

• A practitioner that contracts with an entity that owns a virtual platform used to provide the service OR
• When the practitioner has a payment arrangement with an entity for the use of a virtual platform used to provide such services; AND
• The claims for telehealth services are billed incident to a practitioner’s professional service.

Several amendments were made to HR 7623 from the last publicly available version (May 2024).  Some were specifically related to telehealth in Medicare and others related to other programs.  The telehealth related items include:

• During the extended waiver period (January 1, 2025 – December 31, 2026), FQHCs and RHCs will be paid their prospective payment services rate and not the calculated rate based upon the fee schedule that they have been receiving since the COVID-19 pandemic was declared.
• The Secretary will issue and disseminate (or update if something currently exists) guidance for certain entities on best practices for facilitating and integrating use of interpreters during a telehealth encounter.
• Allowing the use of virtual technology in the Sustainable Cardiopulmonary Rehabilitation Services in the Home Act from January 1, 2025 to December 31, 2027.
• Regulations will be promulgated to allow the use of telehealth technologies in the Medicare Diabetes Prevention Program for the period of January 1, 2025 – December 31, 2030.
• The Secretary will provide education and outreach to appropriate physicians and non-physicians participating in the Medicare program with respect to periodic screening for medication-induced movement disorders that are associated with treatment of mental health disorders in at-risk patients and best practices to perform screenings in a telehealth setting.

Approximately a month ago information came out regarding the Drug Enforcement Administration’s (DEA) proposals on the temporary telehealth waivers for prescribing of controlled substances. The information suggested significant changes on how telehealth would be used to prescribe controlled substances after the current waiver deadline passed. Readers may recall that when the public health emergency (PHE) was scheduled to end, the waiver that allowed telehealth to be used to prescribe a controlled substance without a prior in-person examination by the prescribing telehealth practitioner or meeting one of the already existing exceptions (the prescribing exception during the COVID pandemic was based on the existence and continuation of a declared PHE) would also expire. Initially, the DEA had proposed a set of regulations two months before the end of the PHE that was met with great concern. The DEA eventually extended the waiver to the end of 2024, matching the timeframe that had been put in place for the end of the Medicare temporary telehealth policies.  It’s been reported that the upcoming DEA proposed changes include allowing providers to use telehealth only for half of their prescriptions as well as other proposed items.  Reportedly HHS has expressed concerns with the proposal per an Axios article, as did members of the House Energy and Commerce Committee in the September 18 hearing. It must be noted that no version of the DEA proposal has been made available publicly therefore CCHP has not been able to examine what has been proposed.  
 
Several Committee members including Representatives Doris Matsui (D, CA) and Ann Kuster (D, NH) aired their concerns about the potential details of the DEA proposal as well as the lack of progress in creating a telehealth registry which was in the original bill, the Ryan Haight Act, that placed into law the telehealth policies around prescribing controlled substances. Members of the Committee were especially concerned with the potential for patients to be cut off from needed medications should the DEA proposal leaks prove accurate.  This may signal that Congress may take a more active step in addressing the prescribing issue, though nothing related to the matter is currently included in HR 7623.
 
HR 7623 passed out on a bipartisan vote and will now need to wait to be taken up by the full House.  As Rep. Carter noted in a press release after the bill passed out of Committee, 
   
At the writing of this newsletter the amended version of HR 7623 can be found in the Committee documents, but it should be made available through typical outlets soon.  CCHP will continue to monitor the progress of this bill and update accordingly.