Nixon Law Group’s Managing Partner, Carrie Nixon, published an op-ed in The Hill, the leading publication for Congressional legislators and their staffs. In the op-ed, Carrie sets forth five concrete actions that legislators can take to accelerate the digital health revolution sparked by COVID-19.

From the article,

"The COVID-19 public health emergency has forcefully opened the door for widespread adoption of telehealth, remote patient monitoring, and other digital health platforms by patients and providers alike."

and

“Congress and CMS have made more progress over the past two months in changing healthcare for the better than they have in the past two decades. That progress should not stop with the end of the COVID crisis. Now is the time to for bold action to ensure that our healthcare system is well ahead of the next curve we have to flatten.”

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The COVID-19 public health emergency has forcefully opened the door for widespread adoption of telehealth, remote patient monitoring, and other digital health platforms by patients and providers alike. Using statutory authority to waive certain Medicare requirements during a time of national emergency, Congress and the Centers for Medicare and Medicaid Services (CMS) have implemented a number of long-overdue changes to expand the use and reimbursement of telehealth and other remote/virtual care modalities during the COVID-19 crisis. Many, including CMS Administrator Seema Verma and the U.S. Surgeon General, believe that the genie is now out of bottle and use of telehealth and virtual care is here to stay. But even if the current changes remain in effect post-COVID, are they enough to maintain the momentum we now see around implementation of innovative digital health technologies?

Congress and CMS can take the following five actions now to keep this momentum moving in the right direction.

Pass legislation to make telehealth available permanently to all Medicare patients, by any Medicare-enrolled provider, regardless of location

This is the most obvious and immediate action to be taken in order for telehealth to remain available to Medicare patients after the national emergency.

In the absence of a declared public health emergency, current federal law requires a patient to be located in a rural or undeserved area in order to be eligible for a telehealth visit, and that patient must travel to a clinic or other “originating site” for the visit rather than receiving care at home — thereby eliminating one of the real benefits of remote care, particularly in today’s environment. It also limits the types of “eligible providers” able to bill for telehealth visits, leaving out critical providers like physical therapists, occupational therapists, and speech pathologists.

Health and Human Services Secretary Alex Azar has utilized his waiver authority to eliminate the geographic and originating site restrictions for Medicare patients and make more providers eligible to conduct telehealth visits during the national emergency, but Congress should make these changes permanent, and they should do so before the COVID crisis ends.

The Connect for Health Act — as introduced in 2019 — is a step in the right direction but does not go far enough, eliminating geographic restrictions and originating site requirements only for mental health and emergency care services. 

Incentivize provider adoption of telehealth, remote patient monitoring and digital health services

The stark reality, as evidenced by the chaotic scramble that every sector of the healthcare industry has experienced over the past several months, is that providers will not invest in virtual care programs like telehealth and remote patient monitoring if they are not appropriately incentivized to do so.

The lack of reimbursement available to Medicare providers for virtual and remote care has meant that Medicare patients cannot benefit from those services because they simply aren’t offered by their doctors, plain and simple. 

It is time for us to invest in the value of virtual care by establishing a funding pool available to physician practices for implementing a robust virtual care program. By way of example, Congress passed the HITECH Act in 2009 to incentivize adoption of Electronic Health Records (EHR). By 2017, nearly 80 percent of physician practices used a certified EHR system. As of 2019, only 22 percent of physicians had ever conducted a telehealth visit with a patient. While that percentage will certainly increase dramatically in 2020, there is still much room for improvement.

In addition to funding incentives, CMS should strengthen its “carrot and stick” approach under MACRA’s Quality Payment Program, closely tying physician year-over-year reimbursement increases to implementation of a virtual care program.

Standardize healthcare provider licensure requirements across states

If telehealth, remote patient monitoring, and other digital health services and technologies are to be adopted more broadly, Congress must strongly encourage states to implement a standardized licensure application process for healthcare providers or adopt mutual recognition agreements in which they allow practitioners holding a valid license to practice in one state to practice in another state without going through a separate licensure.

The differing and often complicated licensure requirements imposed by individual states has proven a significant barrier to the availability of telehealth, particularly to patients in rural or underserved areas. This barrier must be eliminated if widespread adoption of digital health innovations is to play a role in improving accessibility and cost of healthcare in our country.

To date, 34 states have enacted legislation recognizing the Nursing Licensure Compact, allowing nurses to work across state lines in compact states without requiring separate licensure in those states. Congress should incentive states to follow this example and extend similar licensure compacts across all healthcare professions.

Create a Digital Health Innovation Center housed jointly within CMS and FDA to actively pilot new digital health tools

CMS is the single largest payer of healthcare in the U.S., thereby giving it the power to set priorities for the future of healthcare in our country. The COVID-19 pandemic has made clear that digital health technologies have an important role to play in that future. If the momentum in digital health innovation is to continue, we must elevate its importance in the eye of patients and providers alike by focusing attention and resources towards testing the efficacy of new tools to improve patient outcomes and reduce overall cost of care.

A Digital Health Innovation Center run jointly by CMS and FDA and in coordination with the American Medical Association’s CPT Committee could facilitate pilot programs aimed at identifying promising new technologies, expedite approval by FDA as necessary for new digital therapeutics and AI algorithms, and accelerate the creation of new CPT codes and reimbursement pathways (currently a minimum two-year process) for digital health tools that demonstrate success.

Finalize comprehensive changes to the healthcare fraud and abuse regulatory infrastructure

In the Fall of 2019, the Department of Health and Human Services released a pair of proposed rules to facilitate the transition to value-based care through significant changes to existing regulations around the Anti-Kickback Statute, the Stark Physician Self-Referral Law, and the Civil Monetary Penalty Law. Many of the proposed changes open the door to allow digital health companies to actively participate in new business models with healthcare provider entities that would be prohibited under the existing regulatory regime.

The proposed rules could also allow a physician practice to waive the required monthly recurring copayments — a significant barrier to adoption — for all of its Medicare enrolled in a remote patient monitoring or other digital care management services program.

Just as important as finalizing these changes is fully educating providers and other players in the healthcare industry about them. For decades now, physicians have been conditioned to fear steep fines or even criminal prosecution for running afoul of the fraud and abuse laws. If they don’t understand the intention behind loosening these long-feared constraints, they will be reticent to adopt new business arrangements with digital health vendors that can actually move the needle on costs and outcomes.

Congress and CMS have made more progress over the past two months in changing healthcare for the better than they have in the past two decades. That progress should not stop with the end of the COVID crisis. Now is the time to for bold action to ensure that our healthcare system is well ahead of the next curve we have to flatten.

Carrie Nixon is co-founder and managing partner at Nixon Law Group and CEO of Nixon HealthNexus a health care reform and innovation consultancy.