Policy Exploration #4: S.368/Telehealth Modernization Act
This policy exploration examines yet another up-and-coming bill in the sea of pending telehealth legislation going and out of committee ahead of the expected slow-down of COVID. The Telehealth Modernization Act is an excellent middle-point for examining policies-of-interest for us and a great characterization of what you can expect in most laws upon being introduced by members of congress. It's simultaneously a great deal more comprehensive than many other telehealth reform bills but also arguably ineffectual. I initially examined this bill as part of an assignment in my Healthcare Policy class at Grand Valley, wherein I was asked to pick a bill or law on the books, dissect it and make recommendations for advocacy. Given the clear prescience, I decided to adapt it. The style is more robust, opinionated, and the speculation section is more akin to a researched recommendation for advocacy. Given the time it takes to pump stuff like this out, I will most likely use this format sparingly and stick to the regular kind in the future. I think telehealth laws on the books are a great place to start, but I think an example like this will be a great way to branch out in the near future. Enjoy!
Note: I directly refer to sections of the bill in the last section, so I encourage readers to give it a look using the URL in the Works Cited page.
Senate Bill 368 or the Telehealth Modernization Act aims to make some temporary telehealth protocols per the COVID-19 emergency permanent by amending Title XVIII of the Social Security Act. The act was introduced to the senate on 21FEB2021 by primary sponsor senator Tim Scott (R) of South Carolina, read twice and referred to the Commerce Committee. Moreover, the bill intends via six provisions to:
- Remove facility fees for establishing new sites
- Expand eligibility for practitioners
- Enhance service for rural providers
- Retain subregulatory processes for changes imposed during the state of emergency
- Allow qualified providers to offer some hospice and dialysis functions via telehealth (the last two are lumped into one.)
Beneficiaries of public health initiatives tend to be as broad in scope as 'any member of the populace working for or benefiting from the specific health industry'. Specifically, owed to the intended preservation and expansion of existing emergency extensions, the Telehealth Modernization Act would directly benefit any and all telehealth providers, especially rural practitioners and those looking to expand telehealth operations (within the given provisions) after the state of emergency is resolved. Indirect beneficiaries would naturally include any and all customers of telehealth services which directly benefit from S.368, particularly consumers already benefiting from the ease of access granted by the emergency status and rural consumers who would have their comparative general deficit in access addressed.
The targets of the Telehealth Modernization Act are any and all telehealth providers in the United States, as well as practitioners and customers wishing to access telehealth services for employ or utility. The text of the bill opens with language which explicitly defines terms endemic to telehealth furnishers, and its provisions are entirely centered on their legal enhancement, making them and persons immediately related to them the sole targets of the legislation.
The legal instruments of S.368 vary per its various provisions and achieve legal legitimacy by amending the Title XVIII of the Social Security Act. Any enforcement of the prospective law in total and each of its provisions would be handled by the Department of Health and Human Services.
The foremost intended outcomes are as the policy asserts - retaining the extended liberties of telehealth providers granted by the state of emergency and further expanding/enhancing their ability to deliver telehealth. The likely hope is to establish a firm, more comprehensive order of regulation for an industry that experienced massive expansion during the state of emergency and maintain that growth due to the technology’s capacity for increasing access to healthcare period. It is also typically the hope of legislation like the Telehealth Modernization Act that the additional provisions will also increase the range and size of the telehealth userbase.
Despite the living experience of what certain aspects of this bill would be like given it preserves existing temporary protocols, truly unintended effects are highly hypothetical. Given its broad intent to expand access to telehealth, it cannot be said that ‘more people will use telehealth services’ is unintended. However, there are some expectations general authorization of this nature will increase competition among health providers within states, and despite the promise to ‘enhance’ service for rural users, there are fears that the authorizations of more specialized services could still perpetuate or exacerbate the bias towards users with the best ability to access care.
A common critique of almost any given legislation that has the potential to expand access to a resource or afford new opportunities is “it doesn’t go far enough”. Common and often unoriginal as the critique may be, it certainly rings true with S.368. The policy is promising enough at face value and a praiseworthy synthesis of many smaller bills saturating House committees ahead of the planned de-escalation of the COVID-19 emergency status. But, the protections it affords are largely nonspecific or relatively ineffectual given the scope of the telehealth accessibility gap. The irony of this criticism, however, is that it’s not at all specific, and certainly doesn’t ‘go far enough’ in addressing what else should be done. On that account, I will address each facet of the bill I think should be revised, and then synthesize them with external suggestions:
Premise of “Extending Medicare Telehealth Flexibilities”
First and foremost, I believe this bill would be more capable as a standalone, more comprehensive telehealth bill more befitting of its name. The bill in totality is brief and often employs relatively vague language to define its provisions. The meat of one of its second section and prominent subsection (a) largely consist of disseminating the often single-word or single-date changes it would make to Title XVIII to preserve the extended Medicare flexibilities under the state of emergency. While I’d argue this is an entirely essential first step, the privileges afforded regarding Medicare being factored into telehealth are not enough to bridge the immense gaps in access. For one, the ability for providers to bill to Medicare is still locked up in red tape. Per the Coronavirus Preparedness and Response Supplemental Appropriations Act, the ability to bill to Medicare is limited to general providers among physicians and basic mental health services (i.e. no special services, including things like substance abuse treatment.) Furthermore, this permission is only afforded to said legally authorized entities assuming they fill out the 1135 waiver. Without addressing the complex issues facing bureaucratic infrastructure in our federal government, it’s already abundantly clear this represents a barrier for many providers, especially for telemental health providers. Nearly all major private providers of that nature are technically software companies and/or aren’t HIPAA compliant.* Furthermore, paltry extension of billing privileges is no solvency for the immense gap in access to not only service, but the internet period - tens of millions of Americans are without a decent broadband connection, smartphone, or computer capable of accessing the internet. What should thus be revised, as stated, should be that the bill either become a standalone provision to allow it greater legal authority than amending the Social Security Act would provide, or that its Medicare privilege extensions be expansions to both providers and lower-income users who are less likely to know about or be able to access care due to cost.
“Expanding Practitioners Eligible to Furnish Telehealth Services” and “Retention Of Additional Services And Subregulatory Process For Modifications Following Emergency Period”
The primary issue I take with the subsequent provisions regarding practitioner expansion and retention of authority (subsections (b) and (c)) echoes my lack of faith in its being an amendment rather than a standalone law. Simply put, rather than designate industry-specific entities that would newly be able to furnish telehealth services or probable specific ‘additional services’, this section of the bill is also comprised entirely of word changes to Title XVIII and the very specific yet paradoxically vague delegation of the power of determination wholly to the Secretary of Health. While this is a valid delegation by all means, I believe leaving the end power to determine who can furnish telehealth to the Secretary of Health per a single, vague provision of a shortly spoken amendment of the Social Security Act is weak compared to what a comprehensive lattice of permanent, automatic, explicitly afforded privileges similar to (but bigger/better than) what the Coronavirus Preparedness Act does as a temporary provision. That, or have it built into a grander and technologically contemporary scale which is then subject to retained subregulatory processing power afforded to the Secretary.
“Enhancing Telehealth Services For Federally Qualified Health Centers And Rural Health Clinics” and Allowance of Dialysis and Hospice Functions
Here, my contention argues both of the prior sections, falling on a combination of “too vague” and “doesn’t go far enough”. I lumped subsections (d), (e) and (f) of the bill together for their simplicity and common ground in this contention. The text of the policy does little to nothing to realize or enforce these ambitions beyond another boilerplate sourcing all authority and creative control to the resident Secretary of Health, nor does it fully explain what it means by “enhancing services” or to what extent the it would allow telehealth furnishers to provide dialysis and hospice services. Regarding “enhancement”, we only see follow-up on the bill’s basic premise in its promise to extend the prior provisions beyond the emergency period via more basic revisions of Title XVIII. If anything, this subsection is borderline redundant, and offers little in the way of the monumental promise of ‘enhancing service’ only a far larger and more specific law could provide. This is not to mention that it’s referring to enhancing services for rural services specifically, without again making any reference to how or using the word ‘rural’ more than once in the entire text. Contributing to this, the provision for dialysis and hospice is especially contentious to me given the highly technically and often exclusively physical nature of both services - the bill makes no effort whatsoever to express this clear gap in enforceability beyond yet again lazily delegating sole power to the present cabinet. Dialysis and hospice care are involved and taxing experiences for both patients and their families, and simply slapping a blank check on the SoH’s desk to authorize any ‘qualified’ service the ability to administer these services via telehealth with no further included legal oversight specific to telehealth is ineffectual at best and insensitive to the specialized needs of those technology’s patrons at worst. This is not to mention that the political agendas of individual Secretaries of Health change rapidly given the climate, as well as being rotated out by presidents or retiring with some regularity. Considering the present nature of American politics, I conclude additionally it's not the brightest idea to leave broad oversight for such a critical issue to a position with little consistency.
It’s telling, if unsurprising, that the gap in healthcare access is strongly correlated with income. According to a survey done by Power to Decide assessing how telehealth access may affect reproductive health, they found an average of 68% of respondents from households reporting $50K or more annual income reported understanding what telehealth is, having accessed it, and knowing how to access it. Among respondents with household incomes less than $50K, only 21% understood what telehealth is, 31% reported having accessed it, and 21% reported knowing how to access it. The greatest criticism I have of the Telehealth Modernization Act is takes next to no action in addressing this gap, both in its text and in its potential reach, instead simply preserving the privileged access of care that has been additionally highlighted during the pandemic. Specifically, without any provisions guaranteeing any explicit rights of ability to deliver care on part of the providers and explicit outlining of eligibility of both providers and patients, there is no guarantee whatsoever making permanent the paltry changes granted by existing emergency protocol will have any lasting impact on addressing the care gap or even enhancing the access those protocols have increased. The bill is significantly more comprehensive than a lot of the piecemeal federal legislation both on the books and tangled in committee at the moment, but it remains to be said that does little more to impress than any of those bills and laws. Delegating the task purely among the states certainly isn’t the solution, either - this is a national issue, and individual states would be able to better address the issue with a comprehensive national framework for telehealth permissions should the end-task be handed to them. Furthermore, this issue is, as stated, intimately tied up in the poorly regulated status of the internet in this country, and the two could certainly be tied together into the comprehensive internet regulation reform we’ve needed for some 20 years. Given the Telehealth Modernization Act is not to the explicit detriment of the American people and still a baby step in the right direction, I can’t say I’d be mad if it passed - however, I’m certainly frustrated that a massive issue requiring large scale retooling of our medical and internet infrastructure to properly address (one often with bipartisan support behind it, I might add) is being brushed aside in favour of small hotfixes pushed into the limelight by the pandemic. Telehealth usage may have become a necessity while it’s raged, but the convenience of it will not suddenly fade when the state of emergency is lifted. The time to tackle this is now.
Scott, Tim. “Text - S.368 - 117th Congress (2021-2022): Telehealth Modernization Act.” Congress.gov, February 23, 2021. https://www.congress.gov/bill/117th-congress/senate-bill/368/text?q=%7B%22search%22%3A%5B%22telehealth%2Bmodernization%2Bact%22%5D%7D&r=1&s=1.
Maeder, A., M. Mars, G. Hartvigsen, A. Basu, P. Abbott, and S. B. Gogia. “Unintended Consequences of Tele Health and Their Possible Solutions.” Yearbook of Medical Informatics 25, no. 01 (2016): 41–46. https://doi.org/10.15265/iy-2016-012.
“Fact Sheet MEDICARE TELEMEDICINE HEALTH CARE PROVIDER FACT SHEET.” CMS, March 17, 2020. https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.
Morozowich, Susan. “The Difference.” Telebehavioral Health.US. Accessed March 25, 2021. https://www.telebehavioralhealth.us/not-just-another-platform.
*Citing our own company is a bit of a cheat or "original research", I admit, but I don't think I could have compiled online telehealth providers admitting their own lack of legitimacy better than Suzie did.
Renault, Marion. “When Health Care Moves Online, Many Patients Are Left Behind.” Wired. Conde Nast, June 6, 2020. https://www.wired.com/story/health-care-online-patients-left-behind/.
Yurcaba, Jo. Forbes.com. October 6, 2020. https://www.forbes.com/sites/joyurcaba/2020/10/06/how-gaps-in-telehealth-access-could-impact-reproductive-health/?sh=f6652e338521.