February 6, 2023

Telehealth Issues to Watch in 2023

During the COVID-19 pandemic, telehealth utilization exploded. Globally, the telehealth market is valued at $83.5 billion and is expected to grow by 24% between 2023 and 2030. As services delivered via telehealth became more widely accessible and more readily covered by commercial and governmental payers, there has been growing recognition of the benefits of telehealth, such as timely access to care and a reduction in costs, both for patients and the healthcare system as a whole. However, since some of the key regulatory waivers that fueled this expansion are temporary, the landscape for telehealth providers in 2023 may present new challenges.

One of the key issues that will impact telehealth providers in 2023 is the expiration of waivers related to telehealth implemented in response to the COVID-19 pandemic once the public health emergency (PHE) ends, which is currently expected to occur on May 11, 2023.

The COVID-19 pandemic prompted the Centers for Medicare and Medicaid Services (CMS) to issue a number of waivers, including waivers to promote access to virtual care. More specifically, CMS’ telehealth waivers eliminated a number of limitations on Medicare coverage of telehealth services during the pandemic to provide coverage for telehealth services provided to patients outside of rural areas and in their homes, broadened the scope of practitioners that could bill for telehealth services, and authorized the use of audio-only technology as a mechanism for telehealth services. These telehealth waivers are currently scheduled to expire 151 days after the federal PHE ends. While CMS has ensured that certain temporary telehealth services will remain in place through at least December 31, 2023, and many are working hard to make these telehealth waivers permanent, it is unclear what types of telehealth services will be covered by Medicare in the future.

As we can expect to see more changes in 2023 related to coverage for telehealth services,  healthcare providers should continue monitoring this developing issue as they consider investments in new technologies.

Another key issue that will impact telehealth providers in 2023 is the in-person examination requirements for prescribing controlled substances.

Before the PHE, the Controlled Substances Act, as amended by the Ryan Haight Act, prohibited prescribing controlled substances via telehealth without a prior in-person examination subject to certain very limited exceptions. In 2018, the Special Registration for Telemedicine Act of 2018 was enacted, which required the Drug Enforcement Administration (DEA) to activate a special registration, which would allow physicians and nurse practitioners to prescribe controlled substances via telemedicine without an in-person exam. The law mandated the DEA to promulgate the regulations before a deadline of October 25, 2019 but the DEA never completed the task. Once the PHE took effect in 2020, under the PHE exception, subject to state law, prescribing controlled substances via telehealth without a prior in-person examination became permitted provided the prescription is issued for a legitimate medical purpose in the usual course of professional practice.

To date, the DEA has been silent as to whether the in-person examination requirement will be reinstated post-PHE and has not provided any guidance regarding its intentions moving forward. Recently, the American Hospital Association (AHA) sent a letter urging the DEA to take immediate action and publish the proposed rule for a special telemedicine registration to allow telemedicine prescribing of controlled substances before the PHE waivers expire. The letter also asks the DEA to publish an interim plan to support continuity of care for the period between the expiration of the PHE waivers and the implementation of the special registration. The implementation of an interim plan is essential to ensure that patients can confidently continue receiving treatment where and when they need it, and providers can avoid any gaps in telehealth care that might leave patients without access to necessary treatment.

New telehealth models emerged during the PHE that expanded access to treatment requiring controlled substances medication. However, given the DEA’s silence on post-PHE requirements for prescribing controlled substances, providers will need to continue to watch this issue for updates so they can quickly respond to developments.

State medical practice laws and telehealth standards will also impact telehealth providers in 2023.

As telehealth is constantly evolving, we can expect more changes in state law in 2023 as lawmakers look to facilitate telehealth services and virtual care models in the future. Many states have enacted laws addressing coverage and payment parity for services delivered via telehealth. Meanwhile, other states are revisiting their medical practice laws to better incorporate telehealth practices and standards. For example, Ohio recently passed a law that allows independent school psychologists to practice telehealth and removes the licensure requirement for out-of-state optometrists who provide services via telehealth. Ultimately, taken as a whole, state law developments with respect to telehealth appear to be trending towards supporting the continued evolution and growth of virtual care.

As we can expect more advances and innovations in the telehealth industry in the coming years, healthcare providers and institutional investors must pay close attention to the changes in the regulatory landscape as they consider investing in new technologies and adapt to the growing digital transformation of healthcare. Further, with access to care limited in many areas combined with nationwide drug shortages, many patients could end up with delayed care, no care, or adverse outcomes if healthcare providers, investors, and telehealth industry stakeholders don’t pay close attention to these issues.