the American Association of Colleges of Osteopathic Medicine

This analysis was prepared by Venable, LLP, on behalf of AACOM.

Due to the federal government’s temporary regulatory changes to facilitate broader utilization of telehealth services (largely via healthcare covered by Medicare) during the COVID-19 public health emergency (PHE), there is significant momentum in Congress to extend or make permanent those (and perhaps additional) changes to further facilitate telehealth beyond the PHE. Certainly, the increased utilization of telehealth during the PHE provides substantial, new data for policymakers to analyze as they consider any such changes. At this stage, it is unclear whether such momentum will result in enactment of a new law, or how broad in scope any such new law would be, but there have been over a dozen telehealth bills recently introduced in the House and Senate. In particular, two such bills (described below), are attracting significant, bipartisan co-sponsorship, and they provide a sense of the potential scope of changes under consideration.

Moreover, recent hearings on the future of telehealth have been held in key committees of jurisdiction, the House Energy & Commerce Subcommittee on Health (March 28) and the House Ways & Means Subcommittee on Health (April 28). At those hearings, key committee leaders generally expressed strong support for telehealth and the need to consider expanding utilization of it, while raising the need also to address equitable access to telehealth services (including a lack of access to broadband and technology in traditionally underserved low income and minority populations), as well as the potential for telehealth to facilitate over-utilization (especially in Medicare fee-for-service), low-value care, and fraud.

The CONNECT for Health Act (H.R. 2903/S. 1512):

At the end of April, companion identical versions of the “Creating Opportunities Now for Necessary and Effective Care Technologies for Health Act of 2021” (the “CONNECT for Health Act”) were introduced in the House (H.R. 2903) and Senate (S. 1512). The lead sponsors of H.R. 2903 are Reps. Thompson (D-CA), Schweikert (R-AZ), Matsui (D-CA), Johnson (R-OH), and Welch (D-VT), and the bill has 11 total cosponsors. The lead sponsors of S. 1512 are Senators Schatz (D-HI), Wicker (R-MS), Cardin (D-MD), Thune (R-SD), Warner (D-VA), and Hyde-Smith (R-MS), and the bill has 55 total cosponsors. Both bills are pending consideration in the respective committees to which they have been referred; H.R. 2903 was referred to the House Energy & Commerce Committee and the House Ways and Means Committee, and S. 1512 was referred to the Senate Finance Committee. According to the bill sponsors’ section-by-section summary, the CONNECT for Health Act:

Provides the HHS Secretary authority to waive telehealth restrictions.
Removes geographic restrictions for telehealth services permanently.
Expands originating sites to include the home and other appropriate sites.
Removes restrictions for emergency medical care services.
Requires CMS’ process to add telehealth services to better consider how telehealth can improve access to care and allows for the temporary coverage of certain telehealth services to generate evidence of clinical benefit.
Permanently allows Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to furnish telehealth services as distant site providers.
Removes restrictions for facilities of the Indian Health Service and Native Hawaiian Health Care Systems.
Permanently allows for the waiver of telehealth restrictions during public health emergencies.
Allows for the use of telehealth in the recertification of a beneficiary for the hospice benefit.
Clarifies that the provision of technologies to a Medicare beneficiary for the purpose of telehealth services is not considered “remuneration” under fraud and abuse laws.
Provides additional resources to the HHS Office of Inspector General for telehealth oversight activities.
Requires additional provider and beneficiary education on telehealth, including to support underserved and high-risk populations in utilizing telehealth services.
Requires a study on telehealth utilization during the COVID-19 pandemic.
Requires an analysis of the impact of telehealth waivers in CMS Innovation Center models.
Authorizes a model to test allowing additional health professionals to furnish telehealth services.
Encourages the CMS Innovation Center to test telehealth models in Medicare.

Telehealth Modernization Act (H.R. 1332/S. 368)

In February, companion identical versions of the “Telehealth Modernization Act” were introduced in the House (H.R. 1332) and Senate (S. 368). The lead sponsors of H.R. 1332 are Reps. Carter (R-GA), Blunt Rochester (D-DE), Griffith (R-WV), Van Drew (R-NJ), Morelle (D-NY), Kilmer (D-WA), Pence (R-IN), and Panetta (D-CA), and the bill has 28 total cosponsors. The lead sponsors of S. 368 are Senators Scott (R-SC), Schatz (D-HI), Wicker (R-MS), Tester (D-MT), Blackburn (R-TN), Marshall (R-KS), and Shaheen (D-NH), and the bill has 11 total cosponsors. Both bills are pending consideration in the respective committees to which they have been referred; H.R. 1332 was referred to the House Energy & Commerce Committee and the House Ways and Means Committee, and S. 368 was referred to the Senate Finance Committee.

The Telehealth Modernization Act extends the telehealth regulatory changes implement by the federal government during the COVID-19 PHE. According to a Congressional Research Service summary of the bill, generally it “allows (1) rural health clinics and federally qualified health centers to serve as the distant site (i.e., the location of the health care practitioner); (2) the home of a beneficiary to serve as the originating site (i.e., the location of the beneficiary) for all services (rather than for only certain services); and (3) all types of practitioners to furnish telehealth services, as determined by the Centers for Medicare & Medicaid Services.”

Please contact AACOM Government Relations at aacomgr@aacom.org with questions or for further information.

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