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The Explosive Growth of Telehealth Throughout the COVID-19 Pandemic and Beyond

      Telehealth use in the United States has increased by over 6,000% since the onset of the COVID-19 pandemic. Medicare telehealth visits alone have increased by 63-fold, from 840,000 in 2019, to 52.7 million in 2020 alone, as discussed by a Department of Health and Human Services (DHHS) report issued in December 2021 (https://bit.ly/3N2t6dJ).
      Of the multiple health care waivers implemented throughout the public health emergency (PHE) both federally and in individual states, many believe that telehealth’s rapid expansion has been beneficial to many Americans. Telehealth has been particularly useful within the nursing home space, helping to protect some of the most vulnerable, immunocompromised older patients and decreasing expenditures for ancillary services like transportation. In addition, the use of virtual visits in long-term care facilities has simplified specialty consults and can decrease unnecessary hospitalizations for residents while also reducing burdens on residents, family members, and staff. Timely diagnoses and treatment by specialty physicians and other providers for nursing home residents can enhance the overall quality of care and life for residents.
      Telehealth provides a cost-effective option for residents who are limited by immobility, illness, or injury, or those who live extended distances from the needed medical care providers.

      Telehealth Waivers

      The telehealth waivers that surfaced at the start of the pandemic have provided residents with a more convenient and flexible modality of care. In March 2022, President Joseph R. Biden signed the Consolidated Appropriations Act (CAA) (available from https://bit.ly/3xC47rZ). This legislation extends Medicare telehealth waivers for an additional five months after the end of the PHE. The law prolongs waivers that eliminate facility and geographic restrictions for behavioral health services, and it permanently authorizes coverage of telehealth services from speech language pathologists, physical therapists, and occupational therapists. This permits telehealth to continue to be available for a myriad of services without limitations on where the service occurs.
      Under the CAA, the Medicare Payment Advisory Commission (MedPAC) is required to conduct a study on the telehealth expansion for Medicare beneficiaries as a result of the ongoing public health emergency. MedPAC’s study must analyze:
      • The utilization of telehealth services under the Medicare program;
      • Medicare program expenditures on telehealth services;
      • Medicare payment policy for telehealth services and alternative approaches to this payment policy; and
      • The implications of expanded Medicare coverage of telehealth services on beneficiary access to care and quality of care (Consolidated Appropriations Act, Pub. L. No. 117-103 [2022]).
      The CAA also requires the DHHS Office of Inspector General (OIG) to issue a report by June 2023 regarding the program integrity and risks associated with Medicare telehealth services. The OIG’s report must include recommendations to prevent fraud, waste, and abuse. The CAA also requires the Centers for Medicare & Medicaid Services to begin publishing data to its website on July 1 and quarterly thereafter related to telemedicine services.
      This upcoming OIG report should provide information for the provider, regulatory, and legal communities to identify areas in the requirements where improvements are needed to prevent telehealth fraud or abuse.

      Telehealth and Malpractice

      As with all emerging and changing health care areas, filing of malpractice actions and other litigation is often delayed after the time of service. Before the pandemic, telehealth malpractice claims were limited because of the limited scope of services that were allowed, which meant few claims were being presented to payors, both governmental and private. We should expect an increase in telehealth litigation in the next few years.
      Missed or misdiagnosis is a frequent type of medical malpractice claim, and it would be expected that the telehealth claims will be no different as litigation increases in the upcoming years. Variations in the types of missed or misdiagnoses often depend on the type of medical care being rendered. A JAMA Internal Medicine article (2013;173:418–425) cited the most common conditions with a missed or misdiagnosis for primary care were pneumonia, decompensated congestive heart failure, and acute renal failure.
      The types and frequency of malpractice actions being filed and significance of the settlements and jury verdicts related to telehealth visits will play out as more actions are filed and time passes as the litigation makes its way through the court systems. Insurance companies will be carefully watching when a significant wave of malpractice actions hit their radar.

      The Future of Telehealth

      In February 2022, the Telehealth Extension and Evaluation Act (Senate Bill 3593) was introduced in the U.S. Senate. This bipartisan legislation as drafted would extend Medicare coverage for telehealth services for two additional years after the PHE ends, allowing Congress to establish a study on the efficacy of telehealth and whether broad access should be permanent. Other bills or potential future legislation concerning telehealth will likely include safeguards to prevent misuse and to ensure that patients are receiving adequate and appropriate care based on their needs throughout the country.
      Currently, all 50 states and the District of Columbia reimburse for live video services provided to beneficiaries enrolled in their Medicaid program (National Conference of State Legislatures, State Telehealth Policies, April 2022, https://bit.ly/3xwINEe). The services, provider types, and locations eligible for reimbursement vary within state Medicaid programs. The states individually continue to refine their telehealth reimbursement policies as well as private payer laws on an ongoing basis. Many states plan to continue all or some of these expanded telehealth policies after the pandemic, especially insofar as they have impacted behavioral health visits.
      At its peak throughout the pandemic, telehealth represented 40% of all mental health and substance abuse outpatient visits in the United States (Justin Lo et al., “Telehealth Has Played an Outsized Role Meeting Mental Health Needs During the COVID-19 Pandemic,” Kaiser Family Foundation, March 15, 2022; https://bit.ly/3tFMcPU). Telehealth has changed the health care landscape, providing individuals with access to behavioral health services that would have otherwise required offsite transportation.
      According to the Census Bureau, currently 24% of the U.S. population is over 60 years old, and one in every five Americans will be 65 or older by 2030. Aging Americans often experience more complex diagnoses and multiple comorbidities. Telehealth provides aging individuals and family members a versatile way to take control of their own multidisciplinary care, resulting in a higher quality of life both in a nursing facility setting or when residing at home.
      Studies by Telehealth.org in 2021 illustrated that the implementation of a telehealth program in nursing homes can address roughly 80% of all resident issues after hours and can decrease the rate of hospital readmissions by up to 70%. Telehealth throughout the pandemic has changed the health care landscape for the better and facilitates more positive outcomes for some of the most vulnerable patient populations.
      According to McKnight’s Long Term-Care News, occupancy in skilled nursing facilities (SNF) is growing (Danielle Brown, “SNF Occupancy Growing — and So Is Level of Patient Needs,” June 6, 2022, https://bit.ly/3tInChb). SNF occupancy in March 2022 reached 77.2%, the highest level in almost two years. With occupancy slowly increasing, staffing shortages continuing, and some facilities struggling to have adequate physician and advanced practice provider coverage, telehealth can help to fill the gaps and meet some of the needs for nursing home residents. Using reliable and reputable telehealth providers can allow nursing homes to supplement their on-site physician and advanced practice provider services to meet many of the medical and diagnostic needs of residents on an ongoing basis.
      Ms. Feldkamp is a partner at Benesch, Friedlander, Coplan & Aronoff LLP. She frequently assists post-acute and acute care providers with regulatory, survey and compliance issues. Her extensive health care experience includes licenses as a registered nurse and nursing home administrator with experience as a state regulator and provider. She is also a member of the Editorial Advisory Board for Caring for the Ages.
      Ms. Pokryfky is a registered nurse, a former army officer, and a graduate of the Case Western Reserve University School of Law. She is currently a law clerk in the Healthcare+ Practice Group at Benesch Friedlander Coplan & Aronoff in the Cleveland Office.