COVID-19, Telehealth Expansion, and the Future of Pediatric Telehealth

• April 02, 2021

• Theresa Langley , Husch Blackwell LLP

The COVID-19 pandemic has led to an unprecedented expansion in the use of telehealth services as a result of federal and state waivers relaxing restrictions and allowing reimbursement. The increased utilization of telehealth services has value for providers and patients beyond the pandemic, particularly for pediatric health. As the end of the pandemic is in sight, the industry looks beyond the emergency waivers in the hopes that many changes will become permanent.

In response to the pandemic, former Department of Health and Human Services (HHS) Secretary Alex Azar declared a public health emergency (PHE) effective on January 27, 2020, and then President Trump declared a national state of emergency under the Stafford Act on March 13, 2020. When (1) the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and (2) the HHS Secretary declares a PHE under Section 319 of the Public Health Service Act, the HHS Secretary is authorized to take certain actions to address the PHE. Under section 1135 of the Social Security Act, the HHS Secretary may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals in the emergency area and time periods and that providers who provide such services in good faith can be reimbursed and exempted from sanctions absent any determination of fraud or abuse.

HHS’ authority to issue 1135 waivers was triggered by the dual PHE and national state of emergency declarations. HHS and the Centers for Medicare & Medicaid Services (CMS) issued dozens of federal “blanket” waivers and state Medicaid waivers that allow practice across state lines, expand Medicare telehealth coverage, and permit discretion in enforcement. By expanding telehealth benefits for Medicare and Medicaid beneficiaries, the goal was to alleviate pressure on health care facilities and ensure that beneficiaries may seek care while minimizing exposure to the virus.

Medicare Expansion

Prior to the COVID-19 pandemic, Medicare only covered telehealth services for “virtual check-ins” and routine visits for beneficiaries in rural areas and at certain facilities. Now, during the PHE, CMS temporarily pays providers for broad telehealth services for Medicare beneficiaries with dates of service on or after March 6, 2020. A range of health care providers, including doctors, nurse practitioners, clinical psychologists, and licensed clinical social workers, may offer telehealth to Medicare beneficiaries, who may receive office visits, mental health counseling and preventive health screenings via telehealth. Beneficiaries are able to receive telehealth services in any health care facility including a physician’s office, hospital, nursing home or rural health clinic, as well as from their homes.

Throughout the PHE, CMS has added new services to the Medicare list, but many were added on a temporary basis and will expire at the end of the PHE. On December 1, 2020, CMS further expanded Medicare reimbursement for telehealth services as part of the annual Physician Fee Schedule final rule to include many services that were added to the Medicare telehealth list permanently beyond the PHE.

Federal privacy enforcement is also relaxed during the PHE to allow providers to video chat with Medicare beneficiaries on popular platforms, including FaceTime, Facebook Messenger, Google Hangouts, and Skype, via their phones rather than established telehealth platforms. The Office for Civil Rights is using discretion in collecting penalties for good faith use of telehealth during the national PHE, even if the services are not provided through HIPAA-compliant technology.

As a result, telehealth utilization has skyrocketed across the country in the last year. An HHS report found that in April 2020, nearly half (43.5%) of Medicare primary care visits were provided through telehealth compared with less than one percent (0.1%) in February before the PHE.[1]

Medicaid Expansion

In response to the pandemic, CMS is supporting state Medicaid and CHIP agencies to expand telehealth. CMS reported that more than 34.5 million services were delivered via telehealth to Medicaid and CHIP beneficiaries between March and June of 2020, representing an increase of more than 2,600% when compared to the prior year.[2]

States have the flexibility to determine whether to cover telemedicine; what services to cover; what types of practitioners may be reimbursed, as long as such practitioners/providers are enrolled and qualified according to Medicaid statute/regulation; and how much to reimburse for telemedicine services, as long as such payments do not exceed Federal Upper Limits. States are not required to submit a State plan amendment to pay for telehealth services if payments for services furnished via telehealth are made in the same manner as when the service is furnished in a face-to-face setting.[3] Through executive orders and legislative authority, many states are ensuring telehealth services are easily accessible and are considering telehealth expansion beyond the PHE.

CMS released a Supplement #1[4] to its State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth, COVID-19 Version[5] to guide states in strategically planning what services should be available and reimbursable through telehealth and for how long. Supplement #1 acknowledges that states are considering whether telehealth flexibilities should continue beyond the PHE on a more permanent basis, and it provides guidance for operationalizing telehealth strategies, particularly in the appendixes which include coding guidance, resources, common modalities, and a sample state Medicaid assessment/action plan.

Proposed Legislation

For services added to the Medicare telehealth list on a permanent basis, reimbursement is limited to beneficiaries in rural areas located in a medical facility such as a nursing home. Though COVID-19 waivers temporarily removed the rural and originating site limitations, Medicare does not have statutory authority to pay for telehealth to beneficiaries outside of rural areas or to beneficiaries located in their homes (with some exceptions) long term. Thus, legislation is needed to permanently expand telehealth reimbursement in non-rural areas beyond the pandemic.

Such legislation has bipartisan support and is already in the works in the 117th legislative session. Here are several initiatives that have been proposed in 2021 and referred to committee:

• Representatives Lisa Blunt Rochester (D-DE) and Michael Burgess, MD (R-TX) reintroduced the Telehealth Improvement for Kids’ Essential Services (TIKES) Act (HR 1397), which aims to boost telehealth coverage through state Medicaid and CHIP services by providing guidance and strategies to hep states integrate telehealth in Medicaid and CHIP programs and mandate telehealth studies.  
• The COVID-19 Emergency Telehealth Impact Reporting Act (HR 1406) has been reintroduced. It would have HHS collect data on telehealth use during the pandemic and analyze how these technology platforms have affected care delivery.
• The Protecting Access to Post-COVID-19 Telehealth Act (HR 366) would eliminate most geographic and originating site restrictions on the use of telehealth in Medicare and authorize CMS to continue reimbursement for telehealth for 90 days beyond the end of the PHE.
• Senators Tim Scott (R-SC) and Brian Schatz (D-HI) re‐introduced the Telehealth Modernization Act (S 4375), which calls for permanent elimination of geographic and originating site restrictions for Medicare, while designating homes as eligible distant sites, and allows HHS to permanently expand types of telehealth services covered by Medicare.

Social Determinants of Health

Pediatric telehealth has special value because it offers a unique perspective of seeing children in their home environment, which may provide their pediatrician with information that would inform the plan of care. It also provides access to health care for children who cannot physically get to their pediatrician’s office due to lack of transportation, particularly in rural and low-income areas.

However, pediatric telehealth has been an inequitable offering thus far. Lack of broadband internet or the necessary technology devices blocks some families from accessing these services via appointments online due to socioeconomic inequities. Other issues may be a lack of guardian who is tech-savvy enough to set up the virtual visit for the minor patient and language barriers. The result is that some children have greater access to the basic preventative health care they need, and others do not. These issues can be remedied, and it is imperative that the health care system move forward addressing these inequities so that the opportunities of pediatric telehealth are not wasted, and children have equitable access to care.

Conclusion

During the PHE, the health care industry irreversibly transformed to provide virtual care for all types of patients, including pediatric telehealth. The myriad of proposed legislation indicates that the restrictions on telehealth services prior to the PHE will not remain in place after it is over. As the health care industry adapts to this new landscape, providers and stakeholders must figure out how to address inequities currently occurring through lack of access to technology, among other issues, so we can ensure that the expansion of telehealth reaches children who need it most.

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