Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

We're excited to introduce Tele-Tuesdays, a new feature on Health Law Scan where we'll bring you the latest updates in the world of telehealth legal issues. From new regulations and legislation to enforcement actions and changes in the telehealth landscape, we'll cover it all.

Federally, telehealth continues to be a central feature of the government’s efforts to expand access and control soaring healthcare costs. Just last week, CMS finalized its rules implementing the Bipartisan Budget Act of 2018, which will increase flexibility for Medicare Advantage (MA) plans offering telehealth services irrespective of whether a patient is in a rural or urban area. Right now, MA plans are working feverishly to redesign their telehealth benefits in anticipation of plan year 2020. Providers interested in offering telehealth services should assess their current MA contracts and consider engaging with plans to make sure their telehealth services are covered. According to Kaiser Family Foundation, MA plans now cover 34% of Medicare beneficiaries, so this will be a momentous occasion in the expansion of telehealth coverage. And should the results of this expansion be as favorable as anticipated, expect future legislation that will expand telehealth to all Medicare beneficiaries, whether enrolled in MA plans or in Original Medicare.

At the VA, the Secretary recently requested over $1 billion to expand and provide for telehealth services to our nation’s veterans. In testimony before the House, Secretary Robert L. Wilkie expounded on his department’s FY 2020 budget request, noting that the VA provided 2.29 million telehealth encounters in FY 2018 and anticipates that number to grow considerably as the VA implements the VA Video Connect system into all VA clinicians’ routine operations. The VA has been and will continue to be a leader in the evolution of telehealth care.

Additionally, many states have proposed legislation or regulatory language that involves telehealth care, including Arkansas, Colorado, Connecticut, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Maryland, Minnesota, New Mexico, North Carolina, North Dakota, Pennsylvania, Oklahoma, Oregon, and Texas. At least five states have pending legislation that would add, expand, or modify the definition of “telehealth” or “telemedicine,” which is a critical determinant in understanding how each state regulates certain practices related to remote care. In addition, states are developing innovative ways of utilizing telehealth services. For example, Hawaii is considering the establishment of a “Strategic Telehealth Advisory Council” and a “State Telehealth Coordinator,” which would be responsible for directing the state’s telehealth policies. HI S.B. 1246. A bipartisan bill in Texas would establish a telehealth center to conduct forensic medical examination in instances of sexual assault, which would expand access to sexual assault nurse examiners for underserved populations. TX S.B. 71. As states continue to expand the use of telehealth in more and evolving ways, healthcare providers should continue to consider opportunities in establishing and expanding their telehealth services.