The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) recently released a report revealing that during OIG’s 2014 and 2015 audits of telehealth claims, more than half of the professional telehealth claims paid by the Medicare program did not have matching originating-site facility claims.

According to the report, Medicare telehealth spending increased from $61,302 in 2001 to $17,601,996 in 2015. Among the 191,118 Medicare paid distant-site telehealth claims (totaling $13,795,384), the OIG randomly sampled 100 of those claims and obtained supporting documentation to determine whether the paid telehealth services were allowable under the Medicare requirements. Approximately a third of the claims did not meet certain Medicare requirements, including:

  • 24 claims were unallowable because beneficiaries received services at non-rural originating sites that did not fall under the demonstration program exception. For proper telehealth Medicare reimbursement, beneficiaries must be located in either: (1) an HPSA that is outside of an MSA or within a rural census tract of an MSA, as of December 31 of the preceding year, or (2) a county that is not included in an MSA as of December 31 of the preceding year. Providers should check whether their patients’ location qualify as an originating site via the Medicare Telehealth Payment Eligibility Analyzer.
  • 7 claims were billed by ineligible institutional providers. Institutional facilities at a distant site may bill Medicare only if: (1) the facility is a CAH that elected the Method II payment option and the practitioner reassigned his or her benefits to the critical access hospital (CAH) or (2) the facility provided medical nutrition therapy (MNT) services.
  • 3 claims were for services provided to beneficiaries at unauthorized originating sites. Telehealth services must be furnished to a beneficiary that is located in one of the following sites: the office of a practitioner, a hospital, a CAH, a rural health clinic, a federally qualified health center, a hospital-based or CAH-based renal dialysis center, a skilled nursing facility, or a community mental health center.
  • 2 claims were for services provided by an unallowable means of communication. Under the Federal regulations, telehealth practitioners must provide telehealth services using an interactive telecommunications system, which excludes telephone, fax, or email. However, CMS provides a carve-out for asynchronous store and forward technology for Federal telemedicine demonstration programs in Alaska and Hawaii.
  • 1 claim was for a non-covered service. Practitioners should refer to the CMS website for the list of telehealth services payable under the Medicare physician fee schedule. Changes to the list are made annually.
  • 1 claim was for services provided by a physician located outside the U.S. Telehealth services are only covered if those services are provided within the U.S.

The OIG largely cited that many of these claims should not have been approved and reimbursed in the first place. For example, the majority of claims related to unallowable geographical locations of the originating sites. Presently, Medicare Administrative Contractors (MACs) do not have a process of editing these types of errors because claim forms do not have designated field for the originating-site location. The claim forms also do not have a field determining the form of communication used by the practitioner. CMS officials stated that it would be unlikely that the forms would include such designations because those designations would not be applicable to non-telehealth practitioners who use the same claim forms.

The OIG recommended that CMS take the following actions:

  • Conduct periodic post-payment reviews for errors for which telehealth claims edits cannot be implemented;
  • Work with MACs to implement all telehealth claim edits listed in the Manual; and
  • Offer education and training sessions to practitioners on Medicare telehealth requirements and related resources.

To date, there have not been any reported cases of enforcement actions taken against telehealth practitioners and stakeholders. However, practitioners and stakeholders should be aware that qui tam actions under the False Claims Act (FCA) may be brought by whistleblowers. The first FCA case was brought in 2016 where a Connecticut mental health practice allegedly submitted false claims to Medicare for telehealth service provided to patients. The complaint alleged that the physician and mental health practice did not use interactive audio and video communications, but simply treated Medicare beneficiaries over the telephone. Although that settlement only amounted to $36,704, the recent OIG report should signal to telehealth practitioners and stakeholders that OIG is now aware and will most likely hold telehealth service providers more accountable for complying with both Federal and state telehealth laws and regulations.

Therefore, practitioners and stakeholders should familiarize themselves with Medicare telehealth requirements as they will most likely change in the next several months, seen most recently with the passage of the Bipartisan Budget Act of 2018, which expanded coverage of telehealth services under Medicare related to telestroke care, Medicare Advantage, and accountable care organizations.

Our colleague Ebunola Aniyikaiye at Epstein Becker Green has a post on the Health Law Advisor blog that will be of interest to our readers: “A Case for an Exception to the FCC Rule: Vulnerable Populations and Telemedicine.”

Following is an excerpt:

On December 14, the Federal Communications Commission (FCC) voted to remove regulations that prohibit providers from blocking websites or charging for high quality service to access specific content. Many worry that allowing telecommunications companies to favor certain businesses will cause problems within the health care industry. Specifically, concerns have risen about the effect of the ruling on the progress of telemedicine and the role it plays in access to care. …

Read the full post here.

On October 26, 2017, President Trump directed the Secretary of the Department of Health and Human Services (“Secretary”) to declare a National Public Health Emergency on the opioid epidemic. While the President offered few details regarding how his administration will address the challenge of treating patients struggling with opioid addiction, a previous statement from the White House indicated that the Administration plans to expand access to treatment via telemedicine and more specifically, remote prescribing of the necessary controlled substances used to treat these patients. While this is a logical step, and one that has been advocated at length by states and health care experts, alike, expanding health care providers’ capabilities to utilize remote prescribing to treat opioid addiction will likely run afoul of existing federal law.

The Ryan Haight Online Pharmacy Consumer Protection Act (“Act”) was passed by Congress in 2008 following the death of Ryan Haight, an 18-year-old honor student who overdosed on prescription narcotics delivered to his door by an internet pharmacy based on a prescription written by a physician he had never seen. The Act amended the federal Controlled Substances Act and requires a prescribing practitioner to be physically present when prescribing, or allowing to be prescribed by a remote practitioner, a controlled substance, if the prescribing practitioner has not previously conducted an in-person physical examination of the patient. However, some have viewed the Act as establishing a significant barrier to the progress of telemedicine. In the words of former Rep. Mary Bono (R-Calif.), “the issue back then is very different from what the issue has become.”

Today, telemedicine has exploded. In just the last year, nearly every state has enacted new legislation that either expands access to telemedicine services, expands parity for reimbursement for telemedicine services, and/or loosens previous restrictions on telemedicine interactions (e.g., establishing practitioner-patient relationships) and remote prescribing. In stark contrast, the federal government has made little to no attempt to modify the antiquated Act to keep up with the telemedicine advancements since it was passed in 2008. Practitioners must now navigate their telemedicine practices around the Act since there are few exceptions to the Act and violations of the Act are considered violations of the Controlled Substances Act, which include fines, penalties, disbarment, and incarceration. With such stiff consequences and the lack of guidance or regulatory measures promulgated by the Drug Enforcement Agency, practitioners are unlikely to prescribe drugs to treat opioid-addicted patients that are most vital to their treatment.

Ironically, the World Health Organization deemed methadone and buprenorphine, two controlled substances, to be “essential medicines” in the treatment of opioid addiction. Studies have shown strong inverse linear association between heroine overdose deaths and patients being treated with opioid agonist treatments, including methadone and buprenorphine. As such, the ability to treat patients effectively through telemedicine and remote prescribing will often require prescribing drugs currently prohibited for such prescription. This realization has come to many policy makers and telemedicine organizations. Most of these individuals and organizations have called for amendment or repeal of the Act; however, one possible interpretation of the Act could allow for remote prescribing of controlled substances to treat opioid addiction under the telemedicine public health emergency declaration exemption of the Act.

Within the Act, Section 802(54)(D) (21 U.S.C. 802(54)(D)) permits the remote prescribing of controlled substances “during a public health emergency declared by the Secretary” and to the extent that the prescribing “involves patients located in such areas, and such controlled substances, as the Secretary, with the concurrence of the Attorney General, designates . . . .” On October 26, 2017, the Secretary, as directed by the President, issued the following statement regarding the public health emergency:

As a result of the consequences of the opioid crisis affecting our Nation, on this date and after consultation with public health officials as necessary, I, Eric D. Hargan, Acting Secretary of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, do hereby determine that a public health emergency exists nationwide.

Although a declaration of a public health emergency normally includes specific geographic parameters rather than blanket “nationwide” issuance, based upon the Secretary’s declaration, one could argue that health care practitioners seeking to treat patients dealing with opioid addiction now must only await the list of controlled substances (to be issued by the Secretary and the U.S. Attorney General) before they are able to remotely prescribing controlled substances to treat opioid addiction. However, even if the Attorney General were to agree with this interpretation of Section 802(54)(D)’s application and to provide a list of controlled substances that can be prescribed thereunder, 42 U.S.C. 247d only permits a declaration of a “public health emergency” to be in place for a maximum of 90 days. Therefore, utilizing Section 802(54)(D) to allow remote prescribing to treat opioid addiction through telemedicine will only serve as a temporary patch, while the bigger issue of amending the Ryan Haight Act needs to be addressed by Congress. In the words of Ms. Bono, “if the Ryan Haight Act needs to be updated, then let’s update it.”

Updates to OIG FY 2017 Work Plan

The United States Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) recently updated its FY 2017 Work Plan. Traditionally, OIG’s annual Work Plan has given health care providers a preview of OIG’s enforcement priorities. With the OIG now making updates to its Work Plan on a monthly basis, providers stand to gain even more insight into how the focus of OIG is constantly shifting in order to assist in the identification of significant compliance risk areas.

In this most recent set of updates to the FY 2017 Work Plan, OIG announced that it will conduct a review of Medicare claims paid for telehealth services in FY 2017. Specifically, OIG is interested in reviewing claims for telehealth services provided at “distant sites” (i.e., the location of the provider of the telehealth service) that do not correspond with claims from an “originating site” (i.e., the location of the patient). By undertaking this review, presumably OIG seeks to verify that providers of telehealth services are: (1) appropriately rendering these services to Medicare beneficiaries based on current reimbursement rules under Medicare for provision of telehealth services (i.e., the beneficiary is at a valid originating site when receiving the telehealth service, which under current Medicare rules does not include a beneficiary’s home), and (2) not submitting fraudulent claims for telehealth services (i.e., services delivered outside of Medicare’s coverage and reimbursement scope). OIG’s review of these claims may demonstrate the need to update Medicare’s outdated coverage and reimbursement provisions for telehealth services.

Medicare’s Current Coverage of and Reimbursement for Telehealth Services

Compared to ever-expanding coverage of and reimbursement for telehealth services in individual states, as well as the private insurance market, Medicare Part B beneficiaries currently have limited access to telehealth services due to the following restrictions:

  1. Medicare beneficiaries only have access to telehealth services transmitted using an “interactive 2-way telecommunications system (with real-time audio and video).” This definition excludes three frequently used modalities used by providers to deliver telehealth services: (a) store-and-forward technology (with the limited exceptions of CMS demonstration projects ongoing in Alaska and Hawaii), (b) remote patient monitoring (“RPM”) services, and (c) mobile health / wearable technology.
  2. Medicare confines telehealth coverage to “rural health professional shortage area[s].” This geographic restriction is federally defined.
  3. Medicare beneficiaries only may receive telehealth services while physically situated at one of eight “originating site[s],” none of which include the patient’s home—those living in geographically-restricted areas are still obligated to access a medical originating site in order to activate Medicare coverage.
  4. Only eight types of practitioners may deliver the telehealth services to Medicare beneficiaries, and must do so from a qualified “distant site.”
  5. The Centers for Medicare & Medicaid Services (“CMS”) publishes a limited number of HCPCS and CPT codes for telehealth services, and while this universe of codes has gradually increased over time, most of these codes are geared towards reimbursement for behavioral health services delivered through telehealth.

Current Legislative Efforts in Congress

In recent years, federal lawmakers have been working to lessen the constraints on Medicare Part B coverage of and reimbursement for telehealth services.

In August 2016, HHS published a Report to Congress on “E-Health and Telemedicine.” In this report, HHS expressed its support for telehealth expansion and its importance in the health care industry: “[T]elehealth holds promise as a means of increasing access to care and improving health outcomes.” Congress has seemed to take note. In the 2017–2018 legislative session, four key bills have been introduced that, if passed, would improve coverage of and reimbursement for telehealth services under Medicare:

  • The CHRONIC Care Act of 2017 (S. 870) would make four key changes to Medicare: (1) provide coverage and reimbursement for RPM delivery of home kidney dialysis assessments; (2) provide nationwide coverage and reimbursement for “telestroke” consultations (not just those that occur in rural hospitals or other originating sites); (3) eliminate the geographic restriction of an originating site for Accountable Care Organization (“ACO”) beneficiaries, thus allowing patients to receive home telehealth services; and (4) allow Medicare Advantage plans to offer telehealth benefits in annual bid amounts, instead of using rebate dollars to pay for telehealth as a “supplemental service.” The CHRONIC Care Act recently received a favorable, budget neutral Congressional Budget Office (“CBO”) score—alleviating a traditionally difficult roadblock for telehealth legislation.
  • The Medicare Telehealth Parity Act of 2017 (H.R. 2550) would provide an incremental expansion of coverage for telehealth services under Medicare by expanding the number of acceptable geographic locations for telehealth coverage under three “phases.”
  • The CONNECT for Health Act of 2017 (H.R. 2556) includes provisions that would expand coverage and reimbursement of telehealth services for (1) ACO enrollees, (2) individuals receiving kidney dialysis therapy, (3) stroke patients, and (4) RPM services for beneficiaries needing chronic care and would lift restrictions on telehealth for mental health services.
  • The HEART Act (H.R. 2291) aims to increase Medicare coverage of telehealth services, including coverage and payment for store-and-forward services delivered to “any telehealth services that are furnished from a distant site, or to an originating site, that is a critical access hospital . . ., a rural health clinic . . ., or a sole community hospital” and for home-based monitoring of congestive heart failure and chronic obstructive pulmonary disease. These three bills have not yet been scored by the CBO.

While it remains to be seen whether any of these bills (or any others) will become law, the level of legislative activity still is promising—and particularly so in conjunction with HHS’s support for telehealth—that expansion of telehealth coverage and reimbursement under Medicare can make greater strides toward improving access to these services for Medicare beneficiaries.

Added to this, OIG’s recent updates to the FY 2017 Work Plan to include a review of telehealth reimbursement claims under Medicare may further accelerate this process if OIG identifies any pertinent potential risk areas related to provision of telehealth services.

This post was written with assistance from Matthew Sprankle, a 2017 Summer Associate at Epstein Becker Green.

Telehealth continues to be a hot topic of state and federal legislatures. Texas, for example, recently joined the rest of the states in no longer requiring initial in-person visits before being able to provide telehealth services.

The Texas legislature enacted the major telehealth bill SB 1107 on May 19, 2017, and the governor signed the bill into law shortly thereafter on May 27, 2017. As reported in our prior post, Texas had considered that, if passed, this telehealth bill would allow patient-physician relationships to be established via telemedicine without requiring an initial in-person visit. Prior guidance from Texas Medical Board required an in-person physician-patient interaction before a visit via telehealth, specifically in prescribing medication. The Texas Medical Board’s telemedicine FAQs are being revised as a result of this enacted law.

This law’s enactment would also effectively bring to an end the years long battle between a telehealth provider and Texas Medical Board. In 2015, a telehealth provider brought legal action against the Texas Medical Board and its telehealth restrictions. This litigation was twice stayed to allow for such a resolution to occur.

Additionally, the Federal Trade Commission was investigating the Texas Medical Board for possible antitrust violations due to its guidance that restricted the practice of telemedicine and telehealth in Texas. However, on June 21, 2017, the Federal Trade Commission announced that it will close its investigation into the Texas Medical Board as a result of the Texas legislatures enacting the law that overrode the board’s telehealth restrictions.

This Texas telehealth law is important because of the large telehealth market that Texas represents. The passage of this law removes the hurdle to allow telehealth providers to start operating or expand operations in the state with the second largest population in the nation.

We continue to track the progress of bills in state and federal legislatures. If you have questions on the provision of telehealth services- in Texas or any other state- please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

What will the telehealth landscape look like under the Donald J. Trump Administration?

The Trump Administration is likely to drive telehealth advancement in a positive direction. For example, President Trump’s plan to reform the Veteran’s Affairs Department includes improved patient care through the use of telehealth technology. There are also some indications that the newly confirmed Secretary of the Department of Health and Human Services (“HHS”), Tom Price, is “telehealth friendly.” Recently, during the congressional confirmation hearings, Price mentioned a tele-stroke program in Georgia as a model of success, and he said he thought there were many things that can be done to mirror that kind of technological expansion. Price also said he is interested in promoting telehealth because it “holds great promise, particularly for rural areas experiencing physician shortages and for patients with limited mobility.” Moreover, Trump’s pick to be the next Administrator of the Centers for Medicare and Medicaid Services (“CMS”), Seema Verma, said in her recent congressional confirmation hearings that she wants to work with Congress to promote the use of telehealth technology. Specifically, she said, “telehealth can provide innovative means of making healthcare more flexible and patient-centric. Innovation within the telehealth space could help to expand access within rural and underserved areas.” Finally, Maureen Ohlhausen, the recently appointed acting chair of the Federal Trade Commission (“FTC”), has in the past spoken favorably regarding the potential of telehealth and has said that the current professional licensure system needs to be rethought given telehealth technology’s potential.

Despite the current focus in Congress on repealing and replacing the Affordable Care Act, telehealth legislation continues to gain traction and bipartisan support on the Hill. In February, a bipartisan group of 37 Senators sent a letter to Tom Price encouraging HHS to support telehealth and remote patient monitoring. Congress also has embraced telehealth advancement with a consistent stream of proposed legislation seeking to enhance the provision of telehealth services. Most recently, Rep. Joyce Beatty (OH-03) and Rep. Morgan Griffith (VA-09) reintroduced the Furthering Access to Stroke Telemedicine (“FAST”) Act that would expand access to stroke telemedicine (also called “telestroke”) treatment in Medicare. Congress also recently introduced HR 766 which would establish a pilot program to expand telehealth options under the Medicare program for individuals living in public housing. Additionally, Congress is poised to consider at least two bipartisan pieces of legislation focused on telehealth. The first is known as the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (“CHRONIC”) Care Act of 2016, which seeks to modernize Medicare payment policies focused on improving the management and treatment of chronic diseases using telehealth technologies. The second is known as the Creating Opportunities Now for Necessary and Effective Care Technologies (“CONNECT”) for Health Act, which seeks to mandate Medicare reimbursement for telehealth services (beyond the current, limited reimbursement framework). Finally, Senator Orrin Hatch (R-UT), the Chairperson of the Senate Finance Committee, recently released his “innovation agenda for the 115th Congress” which encourages the promotion of the “internet of things,” greater broadband investment, and increased device-to-device communication and cross-border data flows.

Continue Reading Telehealth Outlook Under the Trump Administration

Texas and Telehealth: New Bill Would Remove Toughest Hurdle For PractitionersIn recent years, Texas has served as ground zero for a number of the most contentious legal battles surrounding telehealth. This week, State Senator Charles Schwertner, the chairman of the Committee on Health and Human Services, submitted a bill signifying progress for telemedicine and telehealth providers looking to practice in the Lone Star State. The bill, S.B. 1107, would remove one of the toughest hurdles for telemedicine and telehealth practitioners – the face-to-face meeting requirement. Providers would be able to provide services to, and establish physician-patient relationships with, Texas residents through either a synchronous audio-visual interaction or via store-and-forward technology and an audio-only interaction, without ever having to meet the patient in real life. The bill would require the practitioner to use the relevant clinical information required to meet the same standard of care as practitioners providing in-person services.

The bill also would mean changes for the policies of the Texas Medical Board. The legislation signifies that the “telepresenter” requirement, mandating the presence of a healthcare professional when a patient initiates a video consultation, would be eliminated. In addition, the Texas Medical Board, along with the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy, would be required to adopt rules defining “valid” prescriptions for telemedicine visits. This would supersede the current, and defunct, policy against telemedicine prescribing, although prescribing abortion drugs would still be prohibited.

The new bill follows the stay recently placed on the litigation between the Texas Medical Board and telehealth company Teladoc. The dispute arose in 2015 when the Texas Medical Board ruled that Texas physicians were prohibited from prescribing to patients without a face-to-face visit. In response, Teladoc filed an antitrust suit and obtained an injunction against enforcement of the rule. The Texas Medical Board then revised the rule, requiring a face-to-face evaluation to establish a physician-patient relationship. Teladoc again filed suit and obtained another injunction. Although the Texas Medical Board filed an appeal, it backed down in October 2016 after the U.S. Department of Justice and the Federal Trade Commission expressed support for Teladoc through amicus briefs. The Texas Medical Board and Teladoc are now rumored to be discussing a settlement.

Telemedicine has made great recent strides in terms of greater acceptance and deployment.  That said, a lot of work still needs to be done. Two recent surveys, one of tech savvy consumers and another of health care stakeholders make that case.

The first survey was done on behalf of a consumer health engagement company.  It makes for sobering reading. The survey polled 500 insured consumers who are also users of mobile health applications.  Some interesting findings:

  • Almost 40% have not heard of telemedicine.
  • 42% who have not used telemedicine and prefer an in-person physician visit instead.
  • Mobile Healthcare28% don’t know when it is appropriate to use telemedicine.
  • 14% don’t trust a telemedicine provider to diagnose and/or treat.
  • 14% are not sure if telemedicine services are covered by health insurance

Survey participants were also asked for which services they would consider using telemedicine:

  • 44% for follow-up care for acute illness.
  • 44% for symptom tracking/diagnosis.
  • 44% for medication management/prescription  renewal.
  • 34% for follow-up care for a chronic condition.
  • 31% for remote monitoring of vital signs.
  • 24% for behavioral/mental health.

There was better news in the survey. First, 55 percent of consumers who have access to telemedicine have used it.  Second, and more interestingly, 93 percent who have used telemedicine conclude that it lowered health care costs.  While it is only one survey, I think the results clearly show a consumer education and exposure gap regarding telemedicine that needs to be addressed.  Remember, the survey respondents were tech savvy consumers, and the high numbers of those unaware of telemedicine should be a call to action to those of us who believe in the viability of proper telemedicine.

The second recent survey I would like to discuss was conducted by a leading enterprise software company. The survey polled health care executives and health care clinicians regarding their views on the challenges and objectives of telemedicine programs.  The survey paints a compelling and encouraging picture.  Amongst the highlights:

  • Almost 66% of survey participants indicate that telemedicine is their top priority or one of the highest priorities for their healthcare organizations.
  • The top three telemedicine objectives are:
    • Improved patient outcomes.
    • Improved patient convenience.
    • Increasing patient engagement and satisfaction.
  • Among the most significant obstacles to telemedicine success are reimbursement, lack of integration between telemedicine and EMR systems, and determining ROI.
  • Maturity of telemedicine programs varies widely among service lines and care settings. Those settings requiring highly specialized treatment are more mature than those requiring generalized treatment.
  • Approximately a quarter of those surveyed report that ultimate accountability for telemedicine program success rests with a C-level executive.
    • Another 22% report that accountability is at the vice president level.
  • 75% report that the source of the telemedicine platform is primarily purchased or licensed from a vendor.

Based on this survey, the news from health care stakeholders is quite promising for the future of  telemedicine.  Most respondents view telemedicine as one of their top priorities and more than half show their commitment by making C-level executives or vice presidents accountable for telemedicine program success.

Ultimately, I think the two surveys raise interesting and conflicting perspectives.  On the one hand, many health care stakeholders appear all in or thereabouts regarding telemedicine despite significant obstacles such as reimbursement. On the other, there is an unsettling consumer exposure/education gap with significant segments of consumers unaware of telemedicine.  In the final analysis, consumer awareness and education will need to improve significantly to better drive telemedicine demand and growth.

stethescopeAs you all know, the subject of telehealth reimbursement continues to vex the community. For example, Medicare lags far behind.  According to the Center for Telehealth and eHealth Law, Medicare reimbursed approximately $14 million total under its telehealth benefit for 2014.  This represents less than .0025 percent of the total Medicare reimbursed for services that year.  Medicaid is something of a mixed bag with the vast majority of states providing some coverage for telehealth, but many lagging in coverage and reimbursement for store-and-forward services and remote patient monitoring. Generally speaking, private payers have been ahead of the curve with the majority of states having parity laws in place requiring insurers to cover telehealth services in many circumstances.

One of the issues about which I am often asked is whether there is any data surrounding private pay reimbursement for telehealth.  A paper published by the Health Care Cost Institute provides some interesting data into telehealth billings.  The good news is that telehealth has extensive room in which to grow.  Among other issues, the paper analyzed one of the largest private claims databases to analyze trends in telehealth billings from 2009-2013.  Here are some key takeaways:

  • There were 6,506 claims for services related to telehealth submitted by primary care providers (compared to the 95.9 million non-telehealth claims).
  • Family practice providers submitted the most claims for telehealth followed by internal medicine.
  • Non-telehealth service reimbursements increased every year since 2009, from $57 to $61.
  • Average reimbursements for telehealth claims, however, declined substantially after 2011, decreasing from $68 to $38 in 2013—40% lower than that for non-telehealth claims in 2013.
  • California and New York had relatively small numbers of claims when analyzed against their large populations.
  • Among seven unique CPT codes for an office/outpatient visit for evaluation or management of a patient, average telehealth reimbursements were nearly the same or lower than the non-telehealth service for six of these procedures.
  • The most commonly diagnosed problem seen by primary care providers using telehealth (in descending order) were diabetes mellitus (almost 14% of all telehealth claims); depressive disorders; acute sinusitis; biopsy of the lymphatic structure; obstructive sleep apnea; bipolar disorder; and acute upper respiratory infections.

The paper notes that despite the increased use of telehealth, claims for telehealth services to private insurers are rare which the paper acknowledges could be due to the “considerable time lag in the translation of [state telehealth policies] into provider behaviors.  There is also some discussion suggesting that low telehealth billings may be due to confusion regarding the appropriate billing codes to use.

My sense is that a lot has changed since 2013, and that should a review be done today, telehealth billings would have significantly increased.  Nevertheless, the paper clearly confirms telehealth has plenty of room in which to grow.

International TelemedicineAs 2015 winds down, I think it is safe to say that it has been a whirlwind year in telehealth.  According to the National Conference of State Legislatures (NCSL), over 200 telehealth-related bills were introduced in 42 states.  The Federation of State Medical Boards (FSMB) has launched an interstate physician licensure compact that creates a new pathway to expedite physician licensure in multiple states.  Twelve states (with Wisconsin being the latest) have so far enacted the licensure compact.  Many states such as Colorado, Iowa, and Louisiana released regulations or policies that in my view took a more progressive approach to telehealth regulation.

Activity has not just been limited to the states.  Congress has introduced a number of telehealth-related bills such as the TELE-MED Act of 2015 which permits certain Medicare providers licensed in a state to provide telemedicine services to certain Medicare beneficiaries in a different state without having to be licensed in that state.  In addition, a number of reports, surveys, and white papers have been published on all aspects of telehealth.  After many false dawns, telehealth has truly arrived.  But many issues remain to be addressed.

Now we look forward to a new year.  What can we expect?  In addition to a continuation of what has occurred in 2015, there are a few other issues and/or trends that bear watching.  Here are a few:

The Rise of Compacts to Address Licensure Issues

The use of compacts to address licensure issues will continue to gain steam in 2016.  I have already mentioned FSMB’s interstate physician licensure compact.  As many of you know, nurses (RNs and LPNs/VNs) have long had a licensure compact in which a nurse who declares a compact state as his or her primary state of residence can practice (physically and remotely) in other compact states without having to obtain another license.  There are 25 states that are members of the nurse compact.

Other providers are getting in on the act.  Recently, the National Council of State Boards of Nursing, a non-profit association comprising 59 boards of nursing, released a draft compact for advanced practice registered nurses (e.g., nurse practitioners).  The draft APRN compact essentially follows the framework of the nurse licensure compact allowing APRNs to practice in any participating state with just once license. One interesting change in the draft APRN compact not included in the nurse compact is the requirement that states “implement procedures for considering the criminal history records of applicants for initial APRN licensure.”  I expect a number of states to enact the APRN compact in the coming years.

Note that psychologists, physical therapists, counselors, and EMS personnel are just a few of the provider groups that have considered or are considering compact models in some fashion.

Telehealth Accreditation

While there have been some accreditation programs that have touched on telehealth, I believe that 2016 will be the year in which telehealth accreditation takes on new significance.  Two recent examples highlight my point.  About a year ago, the American Telemedicine Association launched an accreditation program for online consultations in which ATA accredits organizations that provide online, real-time health services complying with certain standards.  Among the examples the ATA offers of what kind of the kind of organizations the program would accredit is an employer providing its employees with online, real-time telehealth services.

More recently, URAC, a longstanding accrediting organization, has launched its own telehealth accreditation program for providers involved in consultations with facilities, consumers, and other health care providers through televideo and other electronic methods.  URAC’s accreditation standards were developed by an expert panel that included health systems, hospitals, health plans, telemedicine companies, and academic medical centers.

The Voice of Large Employers

I believe 2016 will be the year large employers will be heard loud and clear in the telehealth regulatory debates that are sure to take place.  The fact is many Americans receive their health insurance through their employers.  And, according to the National Business Group on Health, 74 percent of large employers are expected to offer telehealth in 2016 compared to 48 percent in 2015.  Given the important role employers play in health care, and how telehealth is increasingly being used by employers, it is only logical that employers would ultimately play a significant role in our ongoing telehealth regulatory debate.

One group is leading the charge.  The ERISA Industry Committee (ERIC), the only nonprofit national association advocating solely for the employee benefit and compensation interests of the country’s largest employers, earlier this year launched a telehealth initiative to promote policies that facilitate access to telehealth for employees to have expanded access to health care services.  ERIC will be actively involved in the major telehealth discussions that occur next year both at the state and federal levels giving large employers a significant voice not usually heard from in telehealth regulatory circles.iStock_000062830618_Small

Wearable Market Poised for Breakout

As I have written before in previous blog posts, the healthcare wearables market is projected to significantly increase in the next few years. Generally speaking, wearables are devices (which usually include microchips or sensors) that, among other functions, collect data and track fitness and wellness. Market research is bullish.  For example, Soreon Research, a leading independent research firm, projects that the wearable healthcare market will reach $41 billion by 2020—with diabetes, obesity, sleep disorders, and cardiovascular disease as the largest growth segments in the market.  From my perspective, a combination of the ability to collect data along with big data analytics capabilities will drive this market.  And as the market booms and the technology becomes more sophisticated, legal and regulatory issues loom.  Here are a few issues of which to be mindful:

  • Data privacy and security (who has access to the data, who owns the data, how long the data will be used, etc.).
  • Potential changes to malpractice liability (clinicians having access to more information regarding a particular patient, providers ability to review the voluminous data, etc.).
  • Employer issues (wellness programs, ADA concerns, etc.)
  • FDA.

I have only touched on a few issues.  Other issues such as reimbursement (particularly Medicare), use of telehealth in ACOs and similar models, antitrust, use of diagnostics and peripherals, scope of practice, and privacy and security will be some of the frontline telehealth issues in 2016.  We look forward to addressing all of those issues throughout next year.