Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

With bipartisan bills introduced in both the US House of Representatives and the US Senate on October 30, Congress appears ready to expand access to telehealth benefits for Medicare beneficiaries. The Creating Opportunities Now for Necessary and Effective Care Technologies for Health Act of 2019 (CONNECT Act) may eliminate significant barriers Medicare beneficiaries currently face in accessing and utilizing telemedicine. The CONNECT Act acknowledges the potential for telehealth services to promote the “three pillars” of healthcare—expanding access, improving quality, and reducing spending—particularly at a time where healthcare workforce shortages make it difficult for many Medicare beneficiaries to access the care they need.

Beginning in 2021, the CONNECT Act would grant the US Secretary of Health and Human Services (HHS) the authority to waive restrictions applicable to payment for telehealth services, including originating site restrictions, geographic limitations, limitations on the types of technologies to be used, limitations on provider type, and limitations on the types of services rendered. However—and this is an important caveat—the waiver is only permitted if it is expected to reduce spending without reducing quality of care or denying/limiting coverage to beneficiaries. In addition, the waiver must apply to services provided in high-need, health professional shortage areas. It is currently unclear whether the waiver would also be permitted to apply in other areas without health professional shortages.

CONNECT relies on the discretion of HHS, instead of full removal of the current statutory barriers to telehealth coverage in Medicare. While the Centers for Medicare and Medicaid Services (CMS) has been pushing for expanded telehealth access in recent rulemaking, it is not yet clear how HHS will approach the issue when given this authority. However, for mental health and emergency medical care services, CONNECT eliminates the geographic and other requirements entirely, meaning that no waiver is required from HHS in those situations.

CONNECT would modify the originating site requirements for several services. Most notably, a beneficiary’s home could serve as the originating site for mental health services provided through telehealth. The CONNECT Act also expands the definition of originating sites to include Rural Health Clinics and Federally Qualified Health Centers, and eliminates the originating site requirements for services on Native American land.

The CONNECT Act proposes additional targeted changes to make telehealth more accessible for beneficiaries. CONNECT would lift telehealth restrictions during times of national emergency, permit the use of telehealth for recertification of care, and expand the types of health professionals able to provide telehealth services. Finally, if enacted, the CONNECT Act would direct MedPac to undertake a study of telehealth and direct HHS to consider testing models for telehealth use in Medicare to assess the efficacy of the changes made under the bill.

The CONNECT Act and the House companion legislation were sponsored by a politically and geographically diverse group, including Senators Brian Schatz (D-HI), Roger Wicker (R-MS), Cindy Hyde-Smith (R-MS), Ben Cardin (D-MD), John Thune (R-SD), and Mark Warner (D-VA) and Representatives David Schweikert (R-AZ), Mike Thompson (D-CA), Bill Johnson (R-OH), and Peter Welch (D-VT). Although the CONNECT Act will be subject to debate and potential Congressional Budget Office cost challenges, the bicameral and bipartisan support for this initiative could help strengthen the CONNECT Act’s prospects for passage.