Please find below the latest developments in federal and state virtual care policy as well as research, data, and polling on virtual care.
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DEA Update
Drug Enforcement Administration (DEA): DEA, SAMHSA Extend COVID-19 Telemedicine Flexibilities for Prescribing Controlled Medications for Six Months While Considering Comments from the Public (5/9) – The DEA and the Substance Abuse and Mental Health Services Administration (SAMHSA) issued the “Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Medications” – a temporary rule that extends telemedicine flexibilities adopted during the COVID-19 public health emergency (PHE). The goal of this temporary rule is to ensure a smooth transition for patients and practitioners that have come to rely on the availability of telemedicine for controlled medication prescriptions, as well as allow adequate time for providers to come into compliance with any new standards or safeguards that DEA and/or SAMHSA promulgate in one or more final rules later this year. The temporary rule will:
- Maintain the full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID-19 PHE will remain in place through November 11, 2023, provided certain conditions are met.
- Additionally, for any practitioner-patient telemedicine relationships that have been or will be established on or before November 11, 2023, the full set of telemedicine flexibilities regarding prescription of controlled medications as were in place during the COVID-19 PHE will continue to be permitted via a one-year grace period through November 11, 2024. In other words, if a patient and a practitioner have established a telemedicine relationship on or before November 11, 2023, the same telemedicine flexibilities that have governed the relationship to that point are permitted until November 11, 2024.
DEA received more than 38,000 comments in response to its proposed telemedicine rules, and will continue to review them carefully as DEA and SAMHSA work to put forward final rulemaking on this matter. To view the SAMHSA press release, click here.
Selected News Coverage:
Politico Pro: Behind the DEA’s reversal on telemedicine – industry pressure
(5/11) - A grassroots lobbying campaign by telemedicine advocates helped drive the DEA’s decision to retain pandemic rules permitting doctors to prescribe by telemedicine drugs the DEA regulates. After years of advocacy from telemedicine firms and lobbying groups, including the Alliance for Connected Care, the advocates celebrated a substantial victory. The Alliance for Connected Care convened a group of hundreds of mental health providers to write a letter to the DEA on this issue. Krista Drobac, Executive Director of the Alliance for Connected Care, cites the need for expanded access to behavioral care as cause to promote telemedicine in consideration for permanent policy.
Foley & Lardner LLP: DEA Extends Telemedicine Flexibilities for Prescribing of Controlled Medications (5/10) – On May 10, the DEA released a new regulation temporarily extending the full set of DEA’s COVID-19 waivers for prescribing controlled substances via telemedicine. These waivers, initially put in place in March 2020, are now extended through November 11, 2023. While just a temporary extension of COVID flexibilities, it can be considered a win for patients and clinicians using telemedicine. This article provides an analysis of the key provisions under the DEA’s temporary rule and what is anticipated for next steps in the process for permanent rulemaking regarding this flexibility.
Washington Post: DEA extends telemedicine option for prescribing controlled medications (5/9) – The federal government will allow doctors to keep using telemedicine to prescribe certain medications for anxiety, pain and opioid addiction, extending for six months emergency flexibilities established during the COVID-19 pandemic. The DEA and SAMHSA made the announcement two days before the telemedicine flexibilities were set to expire along with the PHE. Given these rules are temporary, supporters of telemedicine predict that the DEA, when the temporary extension is winding down later this year, will end up proposing less stringent rules on prescribing controlled medications remotely, reflecting the groundswell of public feedback. “If they intended to just plow forward [with the restrictions], they would have just done it,” said Krista Drobac, executive director of the Alliance for Connected Care, which advocates for remote visits as an important component of the health system.
For additional coverage on this topic, see Axios, NPR, California Medical Association, AAFP, HIT Consultant, USA Today, Bloomberg Law, mHealth Intelligence, Medical Economics, Health Leaders, Chief Healthcare Executive and CNN.
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Administration
Centers for Medicare & Medicaid Services (CMS): FAQ – CMS Waivers, Flexibilities, and the End of the COVID-19 PHE (5/12) – CMS issued a new FAQ document that makes notable telehealth changes in regard to the end of the PHE. First, CMS notes it is exercising enforcement discretion to allow teaching physicians in all teaching settings to be present virtually through audio/video real-time communications technology, for purposes of billing under the Physician Fee Schedule for services they furnish involving resident physicians. CMS is exercising this enforcement discretion through December 31, 2023. The document also clarifies a few areas related to hospital outpatient billing for telehealth. CMS newly added a continued flexibility allowing physical therapy, occupational therapy, speech-language pathology, diabetes self-management training (DSMT), and medical nutrition therapy (MNT) providers to continue to bill for their services when furnished remotely in the same way they have been during the PHE – to beneficiaries in their homes through telecommunication technology by hospital-employed staff. It also further clarifies questions around partial hospitalization programs after the PHE. This announcement builds on additional updates made to the guidance documents earlier this week to the ongoing fact sheets for clinicians, hospitals, teaching hospitals, and others.
Department of Health and Human Services (HHS): Fact Sheet – Telehealth Flexibilities and Resources and the COVID-19 Public Health Emergency (5/10) – As HHS continues the process of transitioning away from policies enabled by the COVID-19 emergency declarations, the Department issued a fact sheet to provide clarity regarding the future of federal flexibilities related to telehealth and tele-prescribing to ensure that patients may continue to access and receive the care they need. This fact sheet outlines key details of what will change and what will stay the same for patients and providers once the COVID-19 PHE ends, including for telehealth services across Medicare, Medicaid, and private payers, HIPAA Rules, tele-behavioral health in opioid treatment programs, licensure, and more.
White House: Actions Taken by the Biden-Harris Administration to Ensure Continued COVID-19 Protections and Surge Preparedness After Public Health Emergency Transition (5/9) – The Biden-Harris Administration released a fact sheet outlining the various policies and programs in place during COVID-19 that will remain after the end of the PHE. This includes many major telehealth flexibilities, which will remain in place particularly for those who struggle to find access to care and in rural areas. The vast majority of current Medicare telehealth flexibilities will remain in place through December 2024, and states already have significant flexibility with respect to covering and paying for Medicaid services delivered via telehealth.
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Telehealth Research, Reports and Surveys
Healthcare Fraud Prevention Partnership: Exploring Fraud, Waste, and Abuse Within Telehealth
(5/10) – The Healthcare Fraud Prevention Partnership (HFPP) released a white paper providing background on the use of telehealth services prior to and during the COVID-19 PHE. The purpose of the paper was to identify fraud schemes that take advantage of increased telehealth usage. The paper reviews current telehealth policies, summarizes the benefits and multi-level barriers in telehealth care delivery, describes vulnerabilities, and identifies and characterizes telehealth-related schemes. The paper also reviews methods to identify and mitigate fraud, waste, and abuse in telehealth using referrals and hotlines, data analytics, databases and electronic health records, health care provider and patient education, and cross-disciplinary collaboration and information sharing. It also identifies several systemic challenges in detecting fraud, waste, and abuse in telehealth, and provides recommendations to mitigate these vulnerabilities.
AJMC: Rates of Telemedicine Visits During COVID-19 Pandemic (5/9) – A new study published in the Journal of Medical Internet Research found that older Medicaid beneficiaries had significantly higher telemedicine use during the COVID-19 pandemic compared with younger beneficiaries. The purpose of the study was to examine changes in telemedicine and in-person health service use during the COVID-19 pandemic across age groups for Medicaid beneficiaries in the state of Louisiana. Prior to the pandemic, telemedicine services accounted for less than one percent of total office visit claim volume across the age groups studied. Older Medicaid beneficiaries had higher rates of telemedicine claim volume during the COVID-19 pandemic compared with younger beneficiaries, highlighting a link between telemedicine services and access to care for this population.
Journal of the National Comprehensive Cancer Network (JNCCN): Telemedicine Adoption in an NCI-Designated Cancer Center During the COVID-19 Pandemic – A Report on Patient Experience of Care (5/8) – Researchers from the Moffitt Cancer Center conducted a study to assess patient experiences with telemedicine visits after the initial pandemic period, finding patients rank telemedicine superior for access to care and provider engagement compared to in-person visits. The long-term study on patient experience analyzed survey responses from 39,268 patients across more than 50,000 visits. Telemedicine experiences were compared to in-person visits during and after the height of the pandemic, beginning in April 2020 through June 2021. When it came to access to care, 62.5 percent of in-person visits were rated as highly satisfying, versus 75.8 percent for telemedicine. The corresponding rates were 84.2 percent in-person and 90.7 percent via telemedicine for high satisfaction with the response and amount of concern demonstrated by their care provider. For more information, see the Moffitt Cancer Center press release.
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Telehealth News and Market Developments
American Speech-Language-Hearing Association (ASHA): ASHA Urges Immediate Action from CMS on Pending Expiration of Telehealth Benefits in Certain Health Care Settings (5/12) – ASHA is calling on CMS to clarify, in advance of the end of the public health emergency, outpatient telehealth coverage for services provided by certain health care facilities to avoid unnecessary restrictions to care for patients nationwide. At issue is CMS’ recent interpretation of its Congressional authority to pay for outpatient telehealth services – including occupational, physical and speech-language therapy. Medicare beneficiaries are being told that telehealth services provided by hospitals, skilled nursing facilities, and rehabilitation agencies won’t be covered after May 11, despite Congressional direction to cover telehealth services through 2024.
Healthcare IT News: FirstHealth offers a powerful look at hybrid telemedicine in action (5/8) - At FirstHealth of the Carolinas, a health system based in Pinehurst, North Carolina, bed capacity always seemed to be at the forefront of challenges, a not uncommon situation in health care. FirstHealth staff thought of a way to increase hospital bed capacity without laying a single brick. The Observation at Home program uses telemedicine as the main vehicle to deliver care to stable patients who can safely be treated and monitored from the comfort of their own home via an in-home visit by a paramedic that coincides with a telemedicine video visit by a provider with the paramedic on-site. The combination of in-person visits and telemedicine helps the health system care for these patients safely at home.
Urology Times: Dr. Watts on the role of interstate licensure in telemedicine
(5/8) – At the 2023 American Urological Association Summit, Lisa J. Finkelstein, DO, FACOS and Kara L. Watts, MD presented five key points for urologists to discuss with legislators regarding telemedicine. One such point was around interstate licensure. Dr. Watts highlighted the importance of licensure flexibilities throughout the pandemic, stating “It's an ongoing challenge and definitely important to be able to offer the services of urologists who are in demand and in limited supply to places where there are not enough of us.”
mHealth Intelligence: Partnership Aims to Expand Virtual Care Access for EMS Patients (5/8) – EMS provider Falck announced a collaboration with MD Ally to expand the scope of care for Alameda County, California residents by enabling EMS professionals to connect patients to virtual care providers. To enhance emergency care operations, Falck partnered with virtual care solution provider MD Ally to connect paramedics and emergency medical technicians (EMTs) in Alameda County to non-emergency patients and virtual care professionals. This could eliminate the need for a patient to travel to a hospital as EMTs work with MD Ally providers to decide on the appropriate treatment.
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State Telehealth News
New Hampshire Bulletin: Sununu signs bill allowing telehealth opioid prescriptions (5/12) – New Hampshire Governor Sununu signed a bill that will allow New Hampshire residents to continue to be prescribed opioids via telehealth beyond the end of the federal public health emergency. House Bill 500 allows licensed physicians, physician assistants, and advanced registered nurse practitioners in New Hampshire to prescribe their patients non-opioid and opioid controlled drugs via telemedicine, as long as the patient shows up for an in-person exam at least once a year.
New Hampshire Bulletin: Bill would add telehealth services for inmates (5/10) – A bill is moving through the New Hampshire legislature that would allow the Department of Corrections to use telehealth for some appointments. Senate Bill 126, which passed the Senate in February and the House last week, would allow physicians and physician assistants to treat inmates by telehealth without a New Hampshire licenses as long as they were licensed and in good standing in another state.
KETV: ‘It is definitely a necessity’: Fight for access to telehealth for autism services in rural Nebraska (5/9) – Families in rural Nebraska fear the end of the COVID-19 health emergency will result in the loss of telehealth services for kids with autism. Telehealth helped to fill a void for kids with autism and their parents in this area, especially because there are very few supervisors in rural areas. That supervision is mandated for some autism services, but virtual supervision may no longer be an option after this year. Nebraska Behavior Supports reports that CMS will no longer cover Applied Behavior Analysis services via telehealth, which will be detrimental to patient care.
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