On June 15, 2023, the Medicare Payment Advisory Commission (MedPAC), a nonpartisan independent legislative branch agency that was created to advise Congress on a range of issues affecting Medicare, issued its 2023 Report to Congress. Included therein was a report, mandated by the Consolidated Appropriations Act, on the usage of telehealth services during the public health emergency (PHE) and an analysis of the association between expanded telehealth coverage and healthcare quality, access, and costs.

Discussed in the Telehealth Report, among many other things, was the overall utilization of telehealth during the pandemic.

FFS Medicare spending for telehealth services was very low in 2019 ($130 million) but rose dramatically during the early months of the PHE, peaking at $1.9 billion in the second quarter of 2020, as providers and beneficiaries shifted rapidly from in-person visits to telehealth. Telehealth spending declined in the latter half of 2020 and in 2021, falling to $827 million in the fourth quarter of 2021. Similarly, between 2019 and 2020, the number of FFS beneficiaries who received at least one telehealth service paid under the PFS accelerated rapidly from 239,000 to 14.2 million (40 percent of Part B FFS beneficiaries), then declined in 2021 to 9.7 million (29 percent of Part B FFS beneficiaries).

While the latter part of 2020 and 2021 showed a drop-off in the utilization of telehealth services from its peak in the early months of the PHE in 2020, even as the pandemic eased, telehealth spending remained at an amount over six times what it was pre-PHE. Moreover, the number of beneficiaries utilizing telehealth remained steady at 29% into 2021, which is over forty times more beneficiaries than utilized telehealth pre-PHE. The MedPAC’s annual survey of Medicare beneficiaries also revealed that 40% of telehealth users said they were interested in continuing to use telehealth after the PHE. Thus, while it remains to be seen whether telehealth becomes a permanent fixture in the delivery of services to Medicare beneficiaries, there certainly remains a demand.

The Telehealth Report also commented on the question of whether expanded telehealth coverage impacted quality, access, and cost during the PHE. While the MedPAC qualified its comments by indicating that any conclusions were limited because of a time lag in claims data, which could cloud the results due to COVID-19 surges during the available period of time (i.e. 2021), the report nonetheless conveyed some preliminary conclusions. The MedPAC reviewed Medicare fee-for-service administrative data to compare population-based outcomes across hospital service areas (HSAs) with different levels of telehealth service use. The MedPAC also compared rates of hospitalization and clinician encounters for the various groups of HSAs.  The MedPAC concluded that “during the pandemic, greater telehealth use was associated with little change in measured quality, slightly improved access to care for some beneficiaries, and slightly increased costs to the Medicare program.” The MedPAC cautioned that further research, including the review of more recent data as it becomes available, is critical to truly assess these items.

As Congress grapples with the ultimate questions of what telehealth should look like beyond 2023 and 2024, as the various extensions expire, what remains clear is that the PHE has drastically changed how healthcare is provided to patients. In addition, the rate at which telehealth has been utilized over the past few years is likely to signal a desire for its continued availability into the future. Thus, lawmakers are going to have a difficult time putting the genie back in the bottle and returning telehealth-based Medicare services to the much narrower pre-PHE framework.

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Photo of John W. Kaveney John W. Kaveney

Partner, Healthcare and Litigation Departments

Mr. Kaveney focuses his practice in the area of healthcare law, representing a range of clients that includes for-profit and non-profit hospitals and health systems, academic medical centers, individual physicians and physician groups, ambulatory surgery centers, ancillary service…

Partner, Healthcare and Litigation Departments

Mr. Kaveney focuses his practice in the area of healthcare law, representing a range of clients that includes for-profit and non-profit hospitals and health systems, academic medical centers, individual physicians and physician groups, ambulatory surgery centers, ancillary service providers, medical billing companies, skilled nursing and rehabilitation facilities, behavioral health centers and pharmacies.

His practice in the healthcare field encompasses advising healthcare clients on corporate compliance matters, including the implementation of new, and the assessment of existing, corporate compliance programs. He also assists healthcare clients with compliance audits and investigations, as well as guiding clients through the self-disclosure and repayment processes. Finally, he provides general legal advice concerning compliance and regulatory matters under state and federal healthcare laws.

In the area of information privacy and data security, Mr. Kaveney advises healthcare clients on issues arising under the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH). This includes the implementation and assessment of privacy and security policies and procedures to ensure the proper protection and utilization of protected health information both by healthcare providers and the business associates with which they contract. In addition, he represents healthcare clients in investigating, reporting, and remediating information breaches and the liability such breaches create under various information privacy and security laws.

Additionally, Mr. Kaveney provides counsel on Medicaid and Medicare reimbursement matters before the Division of Medical Assistance and Health Services and the Provider Reimbursement Review Board, as well as assisting clients in civil litigation and with professional licensing and medical staffing concerns.

Contact information:

jkaveney@greenbaumlaw.com | 973.577.1796 | vCard | LinkedIn

For more information visit the Greenbaum, Rowe, Smith & Davis LLP website.