Telehealth and Telemedicine: Frequently Asked Questions

Telehealth and Telemedicine: Frequently Asked Questions

Telehealth and Telemedicine: Frequently Asked Questions

Updated March 12, 2020 (R46239)

Contents

Introduction

General Information

What is telehealth and telemedicine and where are the terms defined in the U.S. Code?

How is the practice of telemedicine defined in statute?

What is the difference between a distant site and an originating site?

What are the originating sites under Medicare Part B?

Telehealth Modalities

What is a telehealth modality?

How does the clinical video telehealth (CVT) modality function?

How does the mobile health (mHealth) modality function?

How does the remote patient monitoring (RPM) modality function?

How does the store-and-forward technology (SFT) modality function?

Telehealth Services

What types of health care services can health care providers provide through telehealth?

What is a direct-to-consumer (DTC) telehealth service?

Telehealth Providers

Can Medicaid health care providers provide telehealth services under the Medicaid program?

Can all health care providers provide telehealth services under the Medicare Part B program?

Is there a federal grant program that aims to assist health care providers with telehealth license portability?

Can health care providers obtain a special registration for telemedicine?

Federal Role in Telehealth

What is the federal role in telehealth?

What is FedTel?

What is the federal government's role in Project ECHO?

How many federal grant programs focus solely on the delivery of telehealth services?

Can the Secretary of the Department of Health and Human Services (HHS) waive telehealth restrictions during emergencies?

How many of the five telehealth conditions for reimbursement under Medicare may the HHS Secretary waive?

Can any authorized physician or authorized practitioner provide telehealth services under certain emergencies?

Tables

Table 1. The Definition of Telehealth as Codified in the U.S. Code

Table 2. The Three Definitions of Telemedicine Codified in the U.S. Code

Introduction

The use of information and communication technology (ICT) in the health care industry is an emergent issue for Congress. Traditionally, legislation on health care addressed issues related to in-person care provided in brick-and-mortar buildings. With ongoing innovations in health care delivery—such as the use of telehealth and telemedicine—health care services can occur outside of traditional brick-and-mortar medical buildings, for example, inside patients' homes.

The health care industry is using telehealth and telemedicine in two major ways: (1) to supplement in-person care for underserved populations who experience barriers to in-person care, and (2) to supplant in-person care for patients who like the convenience of using technology to access their health care services. To keep abreast with the advancements in the health care industry, and to meet the health care needs of the U.S. patient population, Congress continues to consider measures that aim to modernize the federal role in telehealth and telemedicine.¹

This report provides responses to frequently asked questions about telehealth and telemedicine, serving as a quick reference with easy access to information. Where applicable, the report provides the legislative background pertaining to the question.

General Information

What is telehealth and telemedicine and where are the terms defined in the U.S. Code?

Telehealth generally refers to a health care provider's use of information and communication technology (ICT) in the delivery of clinical and nonclinical health care services. The U.S. Code contains one definition for telehealth at Chapter 6A of Title 42. Table 1 lists the definition for telehealth and the law that codified the definition into the U.S. Code.

Table 1. The Definition of Telehealth as Codified in the U.S. Code

U.S. Code Citation

Definition

Public Law

Pertinent Provision

42 U.S.C. §254c-16(a)(4)

The use of electronic information and telecommunications technologies to support long distance clinical health care, patient and professional health-related education, public health, and health administration.

The Health Care Safety Net Amendments of 2002 (P.L. 107-251)

Congress included this definition within Section 221 of P.L. 107-251, which, among other things, required the Secretary of the Department of Health and Human Services, acting through the Director of the Office for the Advancement of Telehealth within the Health Resources and Services Administration, to establish demonstration projects for the delivery of telebehavioral health care services.

Source: CRS prepared this table using information from 42 U.S.C. §254c–16(a)(4) and P.L. 107-251.

The Health Care Safety Net Amendments of 2002 (P.L. 107-251), which codified the only definition of telehealth in the U.S. Code, defines the term telehealth technologies in a similar way. The act refers to telehealth technologies as

the technologies relating to the use of electronic information, and telecommunications technologies, to support and promote, at a distance, health care, patient and professional health-related education, health administration, and public health.²

Congress chose to use the term telehealth technologies when it established the Telehealth Network Grant Program and the Telehealth Resource Center Program as part of P.L. 107-251, (discussed in the "Federal Role in Telehealth" section of this report).

Telemedicine generally refers to a health care provider's use of ICTs in the delivery of only clinical health care services. The U.S. Code contains three definitions for telemedicine, at (1) Chapter 18 of Title 25, (2) Chapter 74 of Title 38, and (3) Chapter 58 of Title 10. Table 2 lists the three definitions for telemedicine and the laws that codified the definitions into the U.S. Code.

Table 2. The Three Definitions of Telemedicine Codified in the U.S. Code

U.S. Code Citations

Definitions

Public Laws

Pertinent Provisions

25 U.S.C. §1603(23)

A telecommunications link to an end user through the use of eligible equipment that electronically links health professionals or patients and health professionals at separate sites in order to exchange health care information in audio, video, graphic, or other format for the purpose of providing improved health care services.

The Indian Health Care Improvement Act (P.L. 94-437)

Congress included this definition within Section 4 of P.L. 94-437 as part of a list of definitions for terms used in the act.

38 U.S.C. §7406 note

The use by a health care provider of telecommunications to assist in the diagnosis or treatment of a patient's medical condition.

The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (P.L. 112-154)

Congress included this definition within Section 108 of P.L. 112-154, which allowed the Secretary of the Department of Veterans Affairs (VA) to perform teleconsultations. According to the law, a teleconsultation refers to "the use by a health care specialist of telecommunications to assist another health care provider in rendering a diagnosis or treatment." P.L. 112-154 required the VA Secretary to provide medical residents with the opportunity to receive VA training on telemedicine through teleconsultations.

10 U.S.C. §1145 note

The use by a health care provider of telecommunications to assist in the diagnosis or treatment of a patient's medical condition.

The National Defense Authorization Act for Fiscal Year 2014 (P.L. 113-66)

Congress included this definition within Section 702 of P.L. 113-66, which required the Secretary of the Department of Defense to submit a report to the congressional defense committees on the use of telemedicine. The goal of the report was to help Congress gather information about how the use of telemedicine could improve the diagnosis and treatment of post-traumatic stress disorder, traumatic brain injuries, and mental health conditions.

Source: CRS prepared this table using information from 25 U.S.C. §1603(23); P.L. 94-437; 38 U.S.C. §7406 note; P.L. 112-154; 10 U.S.C. §1145 note; and P.L. 113-66.

Key stakeholders use the terms telehealth and telemedicine interchangeably because there is no consensus on the definition of either term in the health care industry; therefore, this report uses the term "telehealth" to collectively refer to telehealth and telemedicine, unless otherwise noted.

How is the practice of telemedicine defined in statute?³

The practice of telemedicine is one type of federally authorized activity under the Controlled Substances Act (CSA),⁴ which was added by Section 3 of the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Ryan Haight Act; P.L. 110-425). The practice of telemedicine allows a health care practitioner⁵ to prescribe a controlled substance via telemedicine without performing an in-person medical examination of the patient.⁶ Section 802(54) of Title 21, U.S.C., defines the practice of telemedicine as

the practice of medicine in accordance with applicable [f]ederal and [s]tate laws by a practitioner (other than a pharmacist) who is at a location remote from the patient and is communicating with the patient, or health care professional who is treating the patient, using a telecommunication system referred to in section 1395m(m) of title 42, [U.S.C.].⁷

The CSA, among other things, authorizes health care practitioners to practice telemedicine in the following seven health care settings:

1. when a patient is located in a hospital or clinic,

2. during an in-person examination with another practitioner,

3. through the Indian Health Service,

4. during a public health emergency,

5. by a health care practitioner who has obtained a special registration for telemedicine,⁸

6. during a medical emergency, and

7. in other circumstances "consistent with effective controls against diversion and otherwise consistent with the public health and safety" as established by the Drug Enforcement Administration (DEA), of the Department of Justice, regulation.

What is the difference between a distant site and an originating site?

A distant site is the place where a health care provider delivers a telehealth service to a patient. An originating site is the place where patient receives a telehealth service. Locations of distant and originating sites vary.⁹ For example, a health care provider with a medical office located in Washington State could deliver a telehealth service to a patient in his or her home in Florida. In this example, the medical office is the distant site and the patient's home is the originating site. As another example, a child who is ill at school could receive telehealth care from a provider who is working at a hospital in the same state. In this example, the hospital is the distant site and the school is the originating site.

What are the originating sites under Medicare Part B?

Medicare Part B is a part of the Medicare health insurance program¹⁰ that the Centers for Medicare and Medicaid Services (CMS) of the Department of Health and Human Services (HHS) administers. Currently, an eligible Medicare Part B beneficiary must be located at one of the following originating sites at the time of the telehealth service:

The office of a physician or practitioner

A skilled nursing facility

A critical access hospital

A community mental health center

A rural health clinic

A renal dialysis facility (only for purposes of the home dialysis monthly end-stage renal disease [ESRD]-related clinical assessment)

A federally qualified health center

The home of an individual only for purposes of the home dialysis ESRD-related clinical assessment

A hospital

A mobile stroke unit only for purposes of diagnosis, evaluation, or treatment of symptoms of an acute stroke

A hospital-based or critical access hospital-based renal dialysis center (including satellites)

Originating sites must be located in either a rural health professional shortage area, as defined under Section 332(a)(1)(A) of the Public Health Service Act (PHSA),¹¹ or in a county that is not included in a Metropolitan Statistical Area, as defined in Section 1886(d)(2)(D) of the Social Security Act (SSA, as amended).¹² Entities participating in a federal telemedicine demonstration project that have been approved by, or receive funding from, the Secretary as of December 31, 2000, qualify as an eligible originating site regardless of geographic location. The Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act (P.L. 115-271), among other things, removed the geographic requirements for originating sites during the delivery of specified telehealth services. Congress waived geographic requirements only for the purposes of treating a substance use disorder or a co-occurring mental health disorder.¹³

Telehealth Modalities

What is a telehealth modality?

A telehealth modality refers to the mode in which a telehealth service transpires.¹⁴ There are four common telehealth modalities: (1) clinical video telehealth or live video, (2) mobile health, (3) remote patient monitoring, and (4) store-and-forward technology. Other telehealth modalities include the use of the telephone and facsimile (fax) machine.

How does the clinical video telehealth (CVT) modality function?

The clinical video telehealth (CVT) modality allows a health care provider who is not located in the same location as a patient to view, diagnose, monitor, and treat medical conditions of the patient in real time.¹⁵ The CVT modality functions by allowing a health care provider and the patient to see each other via an interactive live video technology.

How does the mobile health (mHealth) modality function?

The mobile health (mHealth) modality allows a provider to deliver educational materials and other health care resources to patients through a mobile application.¹⁶ Patients who use mHealth can access health care information such as disease-specific resources and mental health resources on their mobile devices.

How does the remote patient monitoring (RPM) modality function?

The remote patient monitoring (RPM) modality allows a health care provider who is not located in the same location as a patient to provide the patient with daily case management services for the patient's chronic medical conditions, such as chronic heart disease or diabetes.¹⁷

How does the store-and-forward technology (SFT) modality function?

The store-and-forward technology (SFT) modality facilitates the interpretation of clinical information. SFT enables a health care provider who is not in the same location as a patient to assist a health care provider who is in the same location and who has provided in-person care to the patient.¹⁸ The SFT modality is similar to the exchange of videos, pictures, and files through an email or personal mobile device. However, the exchange within a telehealth encounter is sent from a health information technology (HIT) system; for example, when a patient's electronic health record is sent to the consulting provider's HIT system.

Telehealth Services

What types of health care services can health care providers provide through telehealth?

Health care providers generally can provide any health care service via telehealth that the provider can provide in-person. Such health care services include dietician services, disease management, genetic counseling, palliative care, psychological assessment, and speech therapy. However, federal and state laws prohibit health care providers from delivering certain services via telehealth. For example, Medicare providers can provide only telehealth services authorized by the Centers for Medicare and Medicaid Services, of the Department of Health and Human Services, such as diabetes management and counseling for tobacco use.¹⁹ Medical abortions are another heath care service regulated by law; some states have or are considering measures to either allow or prohibit medical abortions via telehealth.²⁰

What is a direct-to-consumer (DTC) telehealth service?

A direct-to-consumer (DTC) telehealth service refers to a health care service provided on-demand via a clinical video telehealth modality to a patient, upon the patient's request.²¹ Patients generally can access DTC telehealth services 24 hours a day on any day of the week. DTC telehealth services typically consist of urgent care services for illnesses such as headaches, sore throats, and urinary tract infections. Some DTC telehealth organizations offer the same behavioral health care services as DTC telehealth services.

Two aspects of a DTC telehealth service make it convenient. First, a patient does not have to be enrolled in a health care facility to receive services. The patient generally receives telehealth service from a health care provider who has contracted with a DTC telehealth organization such as American Well or Teladoc.²² A patient can access DTC telehealth services from a local health care facility, his or her workplace, or a school that has chosen to integrate DTC telehealth services into the respective facility.

Second, a patient can access a DTC telehealth service immediately at the time of his or her request. The patient can also schedule a future DTC telehealth service with his or her health care provider. The provider does not have to be located in the same location as the patient when the telehealth service transpires, withstanding state licensing laws for the delivery of telehealth services across state lines. The health care provider can prescribe medications, withstanding federal and state licensing laws for the prescribing of medications across state lines.

A 2017 study found that DTC telehealth services increase access to care but do not decrease health care spending.²³ The authors of the study reviewed the medical claims data for beneficiaries with acute respiratory illnesses who were enrolled in a health maintenance organization plan of the California Public Employees' Retirement System (CalPERS), which is a large California public employee benefit organization. The authors found that the cost savings from the new DTC telehealth services were outweighed by the spending increase associated with those services. According to the study, 88% of the patient load were new patients and the "net annual spending on acute respiratory illness increased $45 per telehealth user."²⁴

Telehealth Providers

Can Medicaid health care providers provide telehealth services under the Medicaid program?

Yes, Medicaid health care providers can provide telehealth services as authorized under the health care providers' respective state Medicaid programs. State Medicaid programs administer and decide on the types of telehealth services and modalities to cover; the types of telehealth providers that may be covered and reimbursed; how much to reimburse for telehealth services, as long as such payments do not exceed federal upper payment limits; and other conditions for payment.

The Center for Connected Health Policy (CCHP) is the federally designated National Telehealth Policy Resource Center under the federal Telehealth Resource Center Program. CCHP publishes annual reports on state telehealth laws and reimbursement policies. For example, the CY2019 report found that²⁵

14 state Medicaid programs reimburse for store-and-forward technology modality;

22 state Medicaid programs reimburse for remote patient monitoring modality; and

50 state Medicaid programs and that of Washington, DC, reimburse for some form of the clinical video telehealth modality.

Can all health care providers provide telehealth services under the Medicare Part B program?

No, not all health care providers can provide telehealth services under the Medicare Part B program. Only authorized health care providers can provide such services. Medicare Part B refers to these health care providers as authorized physicians and authorized practitioners.

An authorized physician is defined as a doctor of the following medical disciplines who is legally authorized to perform such services by the state where the services are performed:²⁶

A doctor of medicine

A doctor of podiatric medicine

A doctor of osteopathy

A doctor of optometry

A doctor of dental surgery

A doctor of chiropractic medicine

A doctor of dental medicine

An authorized practitioner is defined as one of the following health care professionals:²⁷

A physician assistant

A certified nurse-midwife

A nurse practitioner

A clinical social worker

A clinical nurse specialist

A clinical psychologist

A certified registered nurse anesthetist

A registered dietitian or nutrition professional

Is there a federal grant program that aims to assist health care providers with telehealth license portability?

The use of telehealth alone might not necessarily meet the needs of an underserved population when the delivery of the service is limited to the telehealth providers available in a given state. To place telehealth providers in the reach of underserved populations, some states and state licensing boards are adopting the concept of telehealth license portability. Telehealth license portability generally refers to a health care provider's ability to provide a telehealth service to a patient who lives in a state other than the one where the provider lives or is licensed to practice in.

The Licensure Portability Grant Program (LPGP) provides grants to state licensing boards with the goal of helping health care providers provide telehealth services across state lines. The LPGP is a federal grant program that provides competitive grants to state licensing boards to help them reduce statutory and regulatory barriers to telehealth license portability.²⁸ The Health Resources and Services Administration (HRSA), of the Department of Health and Human Services, administers the program. Since the program began, HRSA has awarded LPGP grants to the following three state licensing boards:

1. The Association of State and Provincial Psychology Board (ASPPB). The ASPPB manages the Psychology Interjurisdictional Compact (PSYPACT), which serves as a pathway for licensed psychologists to practice telepsychology across state lines.²⁹ Twelve states currently participate in the PSYPACT.

2. The Federation of State Medical Boards of the United States, Inc. (FSMB). The FSMB manages the Interstate Medical Licensure Compact (IMLC), which serves as a pathway for physicians who meet specified eligibility requirements to practice telehealth across state lines.³⁰ The IMLC is a single compact comprising multiple interstate compacts between states and U.S. Medical and Osteopathic Boards, which FSMB refers to collectively as medical boards. Twenty-nine states, the District of Columbia, and Guam currently participate in the IMLC.

3. The National Council of State Boards of Nursing, Inc. (NCSBN). The NCSBN manages the Nurse Licensure Compact (NLC), which serves as a pathway for nurses to practice across state lines without having to obtain additional licenses.³¹ Thirty-one states currently participate in the NLC.

These three licensing boards are not the only ones working with states to create interstate compacts. For example, the Federation of State Boards of Physical Therapy manages the Physical Therapy Licensure Compact (PT Compact).³² The PT Compact serves as a pathway for physical therapists to provide telehealth services across state lines. Twenty-six states currently participate in the PT Compact.

Can health care providers obtain a special registration for telemedicine?

No, not yet. A special registration for telemedicine would enable a practitioner to deliver, distribute, dispense, or prescribe via telemedicine a controlled substance to a patient who has not been medically examined in person by the prescribing practitioner.³³ The Drug Enforcement Administration (DEA), of the Department of Justice, has not yet finalized a rule that would provide practitioners with standards to adhere to when prescribing controlled substances over the internet to a patient whom the practitioner has not yet evaluated in person.

Section 3232 of P.L. 115-271 amended Section 311(h)(2) of the Controlled Substances Act (CSA) to require that not later than one year after enactment, the Attorney General, in consultation with the Secretary of the Department of Health and Human Services, promulgate final regulations specifying the limited circumstances in which a special registration for telemedicine may be issued and the procedure for obtaining the registration. The DEA missed the congressional deadline to publish the rule, which was October 24, 2019. According to the fall 2018 and fall 2019 Unified Agenda of the Office of Management and Budget, the DEA planned to publish in the Federal Register a proposed rule on the special registration.³⁴

The absence of a DEA final rule on the special registration for telemedicine does not prevent some health care providers from prescribing controlled substances via telemedicine without performing an in-person medical examination of the patient. The special registration is just one way for a health care provider to practice telemedicine in this manner. For example, the state of Ohio enacted a law allowing its licensed health care providers to prescribe a controlled substance via telemedicine without performing an in-person medical examination of the patient when certain requirements are met.³⁵

Federal Role in Telehealth

What is the federal role in telehealth?

As the following examples show, the federal role in telehealth is significant.

The Department of Health and Human Services (HHS) makes health information, including telehealth-related resources, available to the entire health system.³⁶ The Office of the National Coordinator for Health Information Technology (ONC), within HHS, is the federal office "charged with coordination of nationwide efforts to implement and use the most advanced health information technology and the electronic exchange of health information."³⁷

The Department of Veterans Affairs (VA) provides eligible veterans with telehealth services.³⁸ In FY2018, the VA provided 2.29 million telehealth services to 782,000 veteran patients.

The United States Department of Agriculture administers the Distance Learning and Telemedicine Program.³⁹ The grant program enables rural communities to acquire equipment and software that operate via telecommunications and can expand students' access to learning.⁴⁰

What is FedTel?

FedTel is a federal workgroup that consists of multiple federal agencies and departments that invest in or maintain an interest in various telehealth activities.⁴¹ The Health Resources and Services Administration of HHS coordinates the activities of FedTel. The workgroup aims to

reduce organizational silos with respect to telehealth, facilitate telehealth education and information sharing among the members, coordinate funding opportunity announcements and other programmatic materials, and summarize the key telehealth activities of the participants.⁴²

FedTel's expertise is sought after within the federal government. For example, the authors of a report for the Agency for Healthcare Research and Quality (AHRQ) of HHS sought out FedTel for unpublished literature on the use of telehealth for acute and chronic care.⁴³

What is the federal government's role in Project ECHO?

The federal government funds and supports Project ECHO (Extension for Community Health Outcomes), although it was not established by Congress. Established and managed by the University of New Mexico's School of Medicine, Project ECHO is a global, technology-enabled collaborative learning model, whereby medical educators and specialty care health care providers disseminate best practices to primary care and rural health care providers, with the goal of improving the health outcomes of rural and underserved patients—form of telehealth referred to as teleconsultations.⁴⁴ Section 1709A of title 38, U.S.C., defines a teleconsultation as "the use [of telehealth] by a health care specialist of telecommunications to assist another health care provider in rendering a diagnosis or treatment."⁴⁵ Several federal agencies, including the Agency for Healthcare Research and Quality, Health Resources and Services Administration, and Substance Abuse and Mental Health Services Administration, of HHS, and the Department of Veterans Affairs, fund, support, and participate in Project ECHO.⁴⁶

How many federal grant programs focus solely on the delivery of telehealth services?

Eight telehealth grant programs focus solely on the delivery of telehealth services. The Health Resources and Services Administration, of HHS, administers the telehealth grant programs. The programs aim to address the health care needs of the rural, frontier, and underserved populations. A high-level overview of each program is provided below. The first five programs aim to expand access to care; the last three programs aim to provide health care providers with telehealth-related administrative and clinical resources and support.

1. Flex Rural Veterans Health Access Program (RVHAP). The RVHAP aims to expand telemental health care services to rural veterans. Section 1820 of the Social Security Act (SSA) authorizes the program.⁴⁷

2. Evidence-Based Tele-Behavioral Health Network Program (EB THNP). The EB THNP aims to expand access to care in remote emergency departments for rural patients and providers and to determine the effectiveness of that care. SSA Section 711(b) authorizes this program.⁴⁸

3. Licensure Portability Grant Program (LPGP). The LPGP aims to reduce statutory and regulatory barriers to telehealth licensure portability. Section 330L of the Public Health Service Act (PHSA) authorizes the program.⁴⁹

4. Telehealth Network Grant Program (TNGP). The TNGP aims to demonstrate how telehealth technologies can be used through telehealth networks in rural areas, frontier communities, and medically underserved areas, and for medically underserved populations. PHSA Section 330I(d)(1) authorizes this program.⁵⁰

5. Substance Abuse Treatment Telehealth Network Program (SAT TNGP). The SAT TNGP aims to improve substance abuse treatment and other behavioral health care services that associate with common chronic diseases such as congestive health failure, chronic respiratory disease, and diabetes. PHSA Section 330I(d)(1) authorizes this program.⁵¹

6. Telehealth Center of Excellence (COE). The COE aims to examine the efficiency and effectiveness of telehealth in rural and urban areas. SSA Section 711(b)(5) authorizes this program.⁵²

7. Telehealth Focused Rural Health Research Center Cooperative Agreement. This agreement aims to increase and disseminate impartial and clinically informed research on telehealth. SSA Section 711 authorizes this program.⁵³

8. Telehealth Resource Center Program (TRC). The TRC aims to coordinate telehealth organizations that serve rural and underserved communities throughout the country, by providing technical assistance to those organizations through national and regional TRCs. PHSA Section 330I(d)(2) authorizes this program.⁵⁴

Other federal grant programs might include provisions whereby the statute authorizes funds for telehealth. For example, the House report for the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019, and Continuing Appropriations Act, 2019 (P.L. 115-245), provided up to $1 million to HRSA to be used to assist states with purchasing and implementing telehealth for obstetric patients, under the newly established State Maternal Health Innovation (MHI) Program.⁵⁵ The State MHI Program, a five-year maternal health program, funds state-focused demonstration projects with the goal of improving U.S. maternal health outcomes.⁵⁶

Can the Secretary of the Department of Health and Human Services (HHS) waive telehealth restrictions during emergencies?

Yes. The Telehealth Services During Certain Emergency Periods Act of 2020, which is Division B of the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123), authorizes the HHS Secretary to waive and modify certain telehealth requirements during certain emergencies.⁵⁷

Congress allows the HHS Secretary to waive telehealth restrictions during emergencies that originate from

an emergency or disaster declared by the President pursuant to the National Emergencies Act (P.L. 94-412) or the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 100-707, as amended); and

a public health emergency declared by the Secretary pursuant to Section 319 of the Public Health Service Act (PHSA).⁵⁸

Two additional provisions pertain. The emergency could also originate from

the public health emergency declared by the Secretary pursuant to PHSA Section 319 on January 31, 2020, entitled "Determination that a Public Health Emergency Exists Nationwide as the Result of the 2019 Novel Coronavirus";⁵⁹ and

any renewal of such declaration pursuant to PHSA Section 319.

How many of the five telehealth conditions for reimbursement under Medicare may the HHS Secretary waive?

The HHS Secretary may waive four of the five telehealth conditions. P.L. 116-123 allows the HHS Secretary to provide the waivers by program instruction or otherwise.

Condition 1: The rendered service is on Medicare's list of covered telehealth services.⁶⁰ Under Medicare, not every telehealth service rendered by a health care provider is covered. The Secretary of HHS has the authority to change which telehealth services are covered, and these may be changed annually.⁶¹

The HHS Secretary may waive this condition.

Condition 2: The service is delivered via an interactive telecommunication system. According to CMS, an interactive telecommunication system is "multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and distant site physician or practitioner. Telephones, facsimile machines, and electronic mail systems do not meet the definition of an interactive telecommunications system."⁶²

The HHS Secretary may waive this condition by authorizing the use of the telephone to meet the definition of an interactive communication system, "only if such telephone has audio and video capabilities that are used for two-way, real-time interactive communication."

Condition 3: The eligible telehealth individual is located in a telehealth-originating site in a county outside of a metropolitan statistical area (MSA) and/or in a rural health professional shortage area (HPSA).⁶³ An MSA is a densely populated area of at least 50,000 residents. An HPSA is a rural area that generally has a shortage of mental health, primary care, and dental providers.⁶⁴

The HHS Secretary may waive this condition.

Condition 4: The service is provided to an eligible telehealth individual. An eligible telehealth individual is a Medicare enrollee who received his or her telehealth service from an originating site.⁶⁵

The HHS Secretary may waive this condition. However, the act mandates the HHS Secretary to pay facility fees only to the following originating sites:

Physician or practitioner's office

Federally qualified health center

Rural health clinic

Skilled nursing facility

Hospital

Critical access hospital

Community mental health center

Hospital-based or critical access hospital-based renal dialysis center

Condition 5: The service is provided by an authorized physician⁶⁶ or authorized practitioner.⁶⁷

The HHS Secretary does not have the authority to waive this requirement.

Can any authorized physician or authorized practitioner provide telehealth services under certain emergencies?

No. P.L. 116-123 requires authorized physicians and practitioners to also be qualified providers. The act refers to a qualified provider as an authorized physician or practitioner who has either

previously furnished care to the patient, for which payment was made during the three-year period ending on the date such telehealth service was furnished, or

currently practices within the same facility where a different physician or practitioner has furnished care to that patient, for which payment was made during the three-year period ending on the date such telehealth service was furnished.

Author Contact Information

Victoria L. Elliott, Analyst in Health Policy ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

For example, the 116th Congress is considering the Telehealth Expansion Act of 2019 (H.R. 5257) and the Telehealth Across State Lines Act of 2019 (S. 2408).

2.

42 U.S.C. §254c-14(a)(7).

3.

The practice of telemedicine is discussed in CRS Report R45240, The Special Registration for Telemedicine: In Brief.

4.

The primary federal law governing the manufacture, distribution, and use of prescription and illicit opioids is the CSA, a statute that the Drug Enforcement Agency (DEA) is principally responsible for administering and enforcing. See CRS Report R45948, The Controlled Substances Act (CSA): A Legal Overview for the 116th Congress.

5.

Section 802(21) of Title 21, U.S.C., defines a practitioner as "a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research."

6.

The Ryan Haight Act requires that a practitioner conduct an in-person medical evaluation of a patient prior to the delivery, distribution, or dispensation of controlled substances by means of the internet, 21 U.S.C. §829(e)(1), (e)(2), although 21 U.S.C. §829(e)(3)(A) is an exception to this requirement for any provider "engaged in the practice of telemedicine."

7.

A practitioner may use at least one of three telecommunication systems (referred to as telehealth modalities) under the practice of telemedicine: (1) live-video (synchronous), (2) remote patient monitoring (RPM), and (3) mobile health (mHealth). See 42 C.F.R. §410.78(a)(3).

8.

The special registration for telemedicine is not yet available; see the "Can health care providers obtain a special registration for telemedicine?" section of this report.

9.

42 U.S.C. §1395m(m)(4)(A).

10.

CRS Report R40425, Medicare Primer.

11.

42 U.S.C. §254e(a)(1)(A).

12.

42 U.S.C. §1395ww(d)(2)(D).

13.

42 U.S.C. §1395m(m)(7); and CRS Report R45449, The SUPPORT for Patients and Communities Act (P.L.115-271): Medicare Provisions.

14.

Center for Connected Health Policy (CCHP), What is Telehealth?, http://www.cchpca.org/what-is-telehealth.

15.

The Office of the National Coordinator for Health Information Technology (ONC) within HHS, Telemedicine and Telehealth, https://www.healthit.gov/topic/health-it-initiatives/telemedicine-and-telehealth.

16.

Ibid.

17.

Ibid.

18.

Ibid.

19.

CMS, List of Telehealth Services, https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.

20.

Amanda Stirone, J.D., State Regulation of Telemedicine Abortion and Court Challenges to Those Regulations, Charlotte Lozier Institute, July 3, 2018, https://lozierinstitute.org/state-regulation-of-telemedicine-abortion-and-court-challenges-to-those-regulations/; and Eric Wicklund, "State Lawmakers Debate Telemedicine Abortions Phone-Based Telehealth," mHEALTH IINTELLIGENCE, March 20, 2019.

21.

Lori Uscher-Pines, Andrew Mulcahy, David Cowling, et al., "Access and Quality of Care in Direct-to-Consumer Telemedicine," Telemedicine and e-Health, vol. 22, no. 4 (April 2016).

22.

To learn about American Well or Teladoc, see American Well, About Us, https://www.americanwell.com/about-us/; and Teladoc, Talking to a Doctor Has Never Been Easier, https://www.teladoc.com/mystart/?gclid=EAIaIQobChMI0PrmtM2m5wIVjJ-zCh3GJQYJEAAYASAAEgKIgPD_BwE.

23.

J. Scott Ashwood, Ateev Mehrotra, David Cowling, et al., "Direct-to-Consumer Telehealth May Increase Access to Care But Does Not Decrease Spending," Health Affairs, vol. 36, no. 3 (March 2017), pp. 485-491.

24.

Ibid., p. 485.

25.

The Center for Connected Health Policy (CCHP), State Telehealth Laws and Reimbursement Policies: Fall 2019, pp. 1-2, https://www.cchpca.org/about/projects/state-telehealth-laws-and-reimbursement-policies-report.

26.

42 U.S.C. §1395x(r).

27.

42 U.S.C. §1395u(b)(18)(C).

28.

42 U.S.C. §254c-18.

29.

Association of State and Provincial Psychology Board, Psychology Interjurisdictional Compact: Legislative Updates, https://www.asppb.net/mpage/legislative.

30.

Interstate Medical Licensure Compact (IMLC), The IMLC, https://imlcc.org/.

31.

National Council of State Boards of Nursing, Nurse Licensure Compact (NLC), https://www.ncsbn.org/nurse-licensure-compact.htm; and NCSBN, eNLC Fast Facts, https://www.ncsbn.org/NLC_Fast_Facts.pdf.

32.

Federal of State Boards of Physical Therapy, Physical Therapy Licensure Compact, https://www.fsbpt.org/Free-Resources/Physical-Therapy-Licensure-Compact.

33.

21 U.S.C. §831(h) and 21 U.S.C. §829(e).

34.

Office of Management and Budget (OMB), Unified Agenda: Special Registration to Engage in the Practice of Telemedicine, RIN: 1117-AB40, 2018, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201810&RIN=1117-AB40; and OMB, Unified Agenda: Special Registration to Engage in the Practice of Telemedicine, RIN: 1117-AB40, 2019, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1117-AB40.

35.

Nathaniel M. Lacktman and Thomas B. Ferrante, "Ohio Telemedicine Prescribing and Controlled Substances Laws," The National Law Review, March 28, 2017.

36.

ONC, Why is Telehealth Important for Rural Providers?, https://www.healthit.gov/faq/why-telehealth-important-rural-providers.

37.

ONC, About ONC: What We Do, https://www.healthit.gov/topic/about-onc.

38.

CRS Report R45834, Department of Veterans Affairs (VA): A Primer on Telehealth.

39.

United States Department of Agriculture, Distance Learning and Telemedicine Grants, https://www.rd.usda.gov/programs-services/distance-learning-telemedicine-grants; and CRS Report RL33816, Broadband Loan and Grant Programs in the USDA's Rural Utilities Service.

40.

Ibid.

41.

Federal agencies participating on FedTel include HRSA, CMS, the VA, the Department of Defense, and the Department of Justice. See HHS, Report to Congress: E-health and Telemedicine, August 12, 2016, p. 10, https://aspe.hhs.gov/system/files/pdf/206751/TelemedicineE-HealthReport.pdf.

42.

Charles R. Doarn, MBA, Sherilyn Pruitt, MPH, and Jessica Jacobs, MHSA, CPHIMS, et al., "Federal Efforts to Define and Advance Telehealth - A Work in Progress," TELEMEDICINE and e-HEALTH, vol. 20, no. 5 (May 2014), p. 412.

43.

Agency for Healthcare Research and Quality (AHRQ), Telehealth for Acute and Chronic Care Consultations, Comparative Effectiveness Review Number 216, April 2019, p. 7, https://effectivehealthcare.ahrq.gov/products/telehealth-acute-chronic/research.

44.

UNM School of Medicine, Our Story, https://echo.unm.edu/about-echo/ourstory.

45.

38 U.S.C. §1709A(b).

46.

UNM School of Medicine, ECHO Institute Funders, https://echo.unm.edu/about-echo/funders.

47.

42 U.S.C. §1395i-4(g)(6).

48.

42 U.S.C. §912(b).

49.

42 U.S.C. §254c-18.

50.

42 U.S.C. §254c-14(d)(1).

51.

Ibid.

52.

42 U.S.C. §912(b)(5).

53.

42 U.S.C. §912.

54.

42 U.S.C. §254c-14(d)(2).

55.

H.Rept. 115-952, pp. 520-521.

56.

HRSA, Notice of Funding Opportunity: State Maternal Health Innovation (MHI) Program, May 30, 2019, p. i, https://go.usa.gov/xV5Dh.

57.

Centers for Medicare and Medicaid Services of HHS, "Telehealth Benefits in Medicare are a Lifeline for Patients During Coronavirus Outbreak," press release, March 9, 2020, https://www.cms.gov/newsroom/press-releases/telehealth-benefits-medicare-are-lifeline-patients-during-coronavirus-outbreak.

58.

42 U.S.C. §247d.

59.

Assistant Secretary for Preparedness and Response within HHS, Public Health Emergency: Determination that Public Health Emergency Exists, January 31, 2020, https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.

60.

P.L. 116-123 refers to the definition of a telehealth service that is codified at 42 U.S.C. §1395m(m)(4)(F).

61.

Congress gave the Secretary of HHS authority to change which services are reimbursable under Medicare, under 42 C.F.R. § 410.78(f).

62.

42 C.F.R. § 410.78(a)(3).

63.

The location of an originating site is based on its geographical location as defined on December 31 of the previous calendar year. See 42 C.F.R. §410.78(b)(4).

64.

See U.S. Census Bureau, Metropolitan and Micropolitan: Glossary, https://www.census.gov/programs-surveys/metro-micro/about/glossary.html; and HRSA, Types of Designations, https://bhw.hrsa.gov/shortage-designation/types.

65.

C.F.R. §410.78(b)(3). To view a list of originating sites, see the "What are the originating sites under Medicare Part B?" heading in this report.

66.

42 U.S.C. §1395x(r).

67.

42 U.S.C. §1395u(b)(18)(C). To view a list of authorized physicians and authorized practitioners, see the "Can all health care providers provide telehealth services under the Medicare Part B program?" heading in this report.