Health practitioners considering a par provider relationship with a telehealth company, or those who already signed up, may be called upon to reassess their risks. The telehealth landscape is about to change dramatically, again. 

Telehealth in the United States underwent a huge paradigm shift during the pandemic. The Centers for Medicare and Medicaid Services (CMS) issued temporary waivers on literally hundreds of regulations, including those regarding coverage of virtual care, expanding opportunities for providers to bill for telehealth services; 270 types of virtual services are now covered on a permanent basis, but another 160 were temporarily approved. 

The temporary telehealth waivers will expire 151 days after the emergency (PHE) ends. As of today, the Department of Health and Human Services (HHS) expects the federal COVID-19 Public Health Emergency (PHE) declared under Section 319 of the Public Health Service (PHS) Act, to expire by the end of the day on May 11, 2023, and with it, all the temporary rules regarding access to and coverage of health care in America. It is unclear what will happen after that, creating an especially uncertain future for telehealth providers. 

Also complicating matters for telehealth providers is the federal scrutiny it is currently experiencing. During this emergency (PHE), the rapidly expanding telehealth market caught the attention of federal enforcement agencies, and is expected to remain a focus of government oversight. 

The Department of Justice has been pursuing “telefraud” for several years. The Office of Inspector General (OIG) has also taken notice. It issued a Special Fraud Alert outlining seven “suspect” characteristics of telehealth companies that it is looking to catch. These include the ways they advertise for patients, such as targeting only Medicare patients, offering to waive copayments, or boasting that the patient will have to endure only limited interactions with practitioners. 

The OIG also issued multiple reports focused on how telehealth presents a particularly high program integrity risk, which means increased likelihood for telehealth provider claims audits.  OIG recommended that the Centers for Medicare & Medicaid Services (CMS) monitor the billing behavior of telehealth companies, making this an important area for post payment audits in 2023, 2024, and 2025.

Another major change ahead for telehealth providers writing prescriptions for virtual patients is the Controlled Substances Act, as amended by the Ryan Haight Act. The U.S. Drug Enforcement Administration (DEA) has not enforced the prohibition on prescribing controlled substances via telehealth without a prior in-person examination during the pandemic (PHE) but reliance on the emergency exception going forward would be very risky until the DEA adopts final post-pandemic rules. In February, 2023, the DEA announced its proposed rules on prescribing without an examination, signaling that at least some exceptions may continue. 

In New York, the Governor's 2024 Budget calls for telehealth payment parity for mental health services. 

This area of law is expected to continue to rapidly evolve.