Protecting Access to Post-COVID–19 Telehealth Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 366 To amend title XI of the Social Security Act to authorize the Secretary of Health and Human Services to waive or modify application of Medi- care requirements with respect to telehealth services during any emer- gency period, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 19, 2021 Mr. THOMPSON of California (for himself, Ms. MATSUI, Mr. SCHWEIKERT, Mr. JOHNSON of Ohio, Mr. CURTIS, and Mr. WELCH) introduced the fol- lowing bill; which was referred to the Committee on Energy and Com- merce, and in addition to the Committee on Ways and Means, for a pe- riod to be subsequently determined by the Speaker, in each case for con- sideration of such provisions as fall within the jurisdiction of the com- mittee concerned A BILL To amend title XI of the Social Security Act to authorize the Secretary of Health and Human Services to waive or modify application of Medicare requirements with re- spect to telehealth services during any emergency period, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting Access to 4 Post-COVID–19 Telehealth Act of 2021’’. 5 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 366 IH SEC. 2. AUTHORIZATION FOR THE SECRETARY OF HEALTH 1 AND HUMAN SERVICES TO WAIVE OR MODIFY 2 APPLICATION OF MEDICARE REQUIREMENTS 3 WITH RESPECT TO TELEHEALTH SERVICES. 4 (a) SECRETARIAL AUTHORITY TO TEMPORARILY 5 WAIVE OR MODIFY MEDICARE REQUIREMENTS WITH RE- 6 SPECT TO TELEHEALTH SERVICES FURNISHED DURING 7 ANY EMERGENCY PERIOD.—Section 1135 of the Social 8 Security Act (42 U.S.C. 1320b–5) is amended by adding 9 at the end the following new subsection: 10 ‘‘(h) WAIVER OR MODIFICATION OF CERTAIN RE- 11 QUIREMENTS WITH RESPECT TO TELEHEALTH SERV- 12 ICES.— 13 ‘‘(1) IN GENERAL.—Notwithstanding any other 14 provision of this section, during the period described 15 paragraph (2), the Secretary may waive or modify 16 any requirement with respect to a telehealth service 17 payable under section 1834(m)(1) for such period. 18 ‘‘(2) PERIOD DESCRIBED.—For purposes of 19 paragraph (1), the period described in this para- 20 graph is the period— 21 ‘‘(A) beginning on the first day of— 22 ‘‘(i) an emergency or disaster declared 23 by the President pursuant to the National 24 Emergencies Act or the Robert T. Stafford 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 366 IH Disaster Relief and Emergency Assistance 1 Act; or 2 ‘‘(ii) a public health emergency de- 3 clared by the Secretary pursuant to section 4 319 of the Public Health Service Act; and 5 ‘‘(B) ending on the day that is 90 days 6 after the last day of an emergency, disaster, or 7 public health emergency described in subpara- 8 graph (A).’’. 9 (b) REPORT.— 10 (1) DEFINITIONS.—In this subsection: 11 (A) COVID–19 PUBLIC HEALTH EMER- 12 GENCY.—The term ‘‘COVID–19 public health 13 emergency’’ means the outbreak and public 14 health response pertaining to Coronavirus Dis- 15 ease 2019 (COVID–19), associated with the 16 emergency declared by the Secretary on Janu- 17 ary 31, 2020, under section 319 of the Public 18 Health Service Act (42 U.S.C. 247d), and any 19 renewals thereof and any subsequent declara- 20 tions by the Secretary related to COVID–19. 21 (B) SECRETARY.—The term ‘‘Secretary’’ 22 means the Secretary of Health and Human 23 Services. 24 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 366 IH (2) DATA COLLECTION AND REPORTS ON THE 1 USE OF TELEHEALTH DURING THE COVID–19 PUB- 2 LIC HEALTH EMERGENCY.— 3 (A) DATA COLLECTION AND ANALYSIS.— 4 (i) IN GENERAL.—Beginning not later 5 than 30 days after the date of enactment 6 of this Act, the Secretary shall collect and 7 analyze qualitative and quantitative data 8 on the impact of telehealth services, virtual 9 check-ins, digital health, and remote pa- 10 tient monitoring technologies on health 11 care delivery permitted by the waiver or 12 modification of certain requirements under 13 titles XVIII of the Social Security Act (42 14 U.S.C. 1395 et seq.), and any regulations 15 thereunder, pursuant to section 1135 of 16 such Act (42 U.S.C. 1320b–5) during the 17 COVID–19 public health emergency, which 18 may include the collection of data regard- 19 ing— 20 (I) health care utilization rates 21 across the Medicare program under 22 title XVIII of the Social Security Act 23 (42 U.S.C. 1395 et seq.) for individ- 24 uals confirmed or suspected to have 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 366 IH COVID–19 and individuals seeking 1 care unrelated to COVID–19, includ- 2 ing— 3 (aa) patient access to tele- 4 health services in medically un- 5 derserved communities; or 6 (bb) individuals receiving 7 telehealth services through feder- 8 ally qualified health centers (as 9 defined in section 1861(aa)(4) of 10 the Social Security Act (42 11 U.S.C. 1395x(aa)(4)) or rural 12 health clinics (as defined in sec- 13 tion 1861(aa)(2) of such Act (42 14 U.S.C. 1395x(aa)(2))) serving as 15 originating sites or distant sites, 16 and any challenges for providers 17 furnishing telehealth services in 18 these communities; 19 (II) health care quality for indi- 20 viduals confirmed or suspected to have 21 COVID–19 and individuals seeking 22 care unrelated to COVID–19 as meas- 23 ured by— 24 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 366 IH (aa) quality of care metrics, 1 such as hospital readmission 2 rates, missed appointment rates, 3 or wellness visits, and 4 (bb) engagement metrics, 5 such as voluntary patient satis- 6 faction surveys and voluntary 7 provider satisfaction surveys; 8 (III) audio-only telehealth utiliza- 9 tion rates when other video-based tele- 10 health was not an option or any other 11 telehealth services that were not pro- 12 vided in real-time (including text-mes- 13 saging or through online chat plat- 14 forms), the types of visits, and the 15 types of providers treating individuals; 16 (IV) telehealth utilization rates 17 used to treat individuals across State 18 lines; 19 (V) the health outcomes of any 20 individual who utilizes telehealth serv- 21 ices to treat an underlying health con- 22 dition such as diabetes, end-stage 23 renal disease, chronic lung disease, 24 obstructive pulmonary disease, coro- 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 366 IH nary artery disease, or cirrhosis and 1 the types of technology utilized to re- 2 ceive care, including text-messaging, 3 online chat platforms, audio-only, or 4 video conferencing; 5 (VI) the health outcomes of any 6 individual who utilizes mental health 7 care and substance use disorder treat- 8 ment services, and the types of tech- 9 nology utilized to receive care, includ- 10 ing text-messaging, online chat plat- 11 forms, audio-only, or video confer- 12 encing; 13 (VII) the impact of State and 14 Federal privacy and security protec- 15 tions on the delivery of care and pa- 16 tient safety, including the security of 17 the various technologies utilized to de- 18 liver or receive telehealth care; 19 (VIII) how telehealth access dif- 20 fers by race, ethnicity, or income lev- 21 els; 22 (IX) the types of technologies 23 utilized to deliver or receive telehealth 24 care, including Zoom, Skype, 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 366 IH FaceTime, text messaging, online chat 1 platforms, or other technologies, as 2 observed by the Secretary, and utiliza- 3 tion rates, disaggregated by type of 4 technology (as applicable); 5 (X) the investments necessary for 6 providers to develop a platform to ef- 7 fectively provide telehealth services to 8 their patients, including the costs of 9 the necessary technology and the costs 10 of training staff; and 11 (XI) any additional information 12 determined appropriate by the Sec- 13 retary. 14 (ii) BROADBAND AVAILABILITY 15 DATA.—Upon request by the Secretary, the 16 Assistant Secretary of Commerce for Com- 17 munications and Information and the Fed- 18 eral Communications Commission shall 19 provide the Secretary any relevant data re- 20 garding the availability of broadband inter- 21 net access service (as defined in section 22 801 of the Communications Act of 1934 23 (47 U.S.C. 641)) for the purposes of com- 24 pleting the report under clause (i). 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 366 IH (B) INTERIM REPORT TO CONGRESS.—Not 1 later than 90 days after the date of enactment 2 of this Act, the Secretary shall submit to the 3 Committees on Finance and Health, Education, 4 Labor, and Pensions of the Senate and the 5 Committees on Ways and Means and Energy 6 and Commerce of the House of Representatives 7 an interim report on the impact of telehealth 8 based on the data collected and analyzed under 9 subparagraph (A). For the purposes of the in- 10 terim report, the Secretary may determine 11 which data collected and analyzed under sub- 12 paragraph (A) is most appropriate to complete 13 such report. 14 (C) FINAL REPORT TO CONGRESS.—Not 15 later than 180 days after the date of enactment 16 of this Act, the Secretary shall submit to the 17 Committees on Finance and Health, Education, 18 Labor, and Pensions of the Senate and the 19 Committees on Ways and Means and Energy 20 and Commerce of the House of Representatives 21 a final report on the impact of telehealth based 22 on the data collected and analyzed under sub- 23 paragraph (A) that includes— 24 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 366 IH (i) conclusions regarding the impact 1 of telehealth services on health care deliv- 2 ery during the COVID–19 public health 3 emergency; and 4 (ii) an estimation for total Medicare 5 spending on telehealth services, including 6 total spending for each specific type of 7 service for which Medicare reimbursed. 8 (D) STAKEHOLDER INPUT.— 9 (i) IN GENERAL.—For purposes of 10 subparagraph (A), (B), and (C), the Sec- 11 retary shall seek input from the Medicare 12 Payment Advisory Commission, the Med- 13 icaid and CHIP Payment and Access Com- 14 mission and nongovernmental stakeholders, 15 including patient organizations, providers, 16 and experts in telehealth. 17 (ii) COMMENT PERIOD.—For the pur- 18 poses of this subsection, the Secretary 19 shall establish a comment period not later 20 than 14 days after the date of enactment 21 of this Act. 22 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 366 IH SEC. 3. RURAL HEALTH CLINICS AND FEDERALLY QUALI- 1 FIED HEALTH CENTERS. 2 (a) EXPANSION OF DISTANT SITES.—Section 3 1834(m) of the Social Security Act (42 U.S.C. 1395m(m)) 4 is amended— 5 (1) in the first sentence of paragraph (1)— 6 (A) by striking ‘‘or a practitioner (de- 7 scribed in section 1842(b)(18)(C))’’ and insert- 8 ing ‘‘, a practitioner (described in section 9 1842(b)(18)(C)), a federally qualified health 10 center, or a rural health clinic’’; and 11 (B) by striking ‘‘or practitioner’’ and in- 12 serting ‘‘, practitioner, federally qualified health 13 center, or rural health clinic’’; 14 (2) in paragraph (2)(A)— 15 (A) by inserting ‘‘or to a federally qualified 16 health center or rural health clinic that serves 17 as a distant site’’ after ‘‘a distant site’’; and 18 (B) by striking ‘‘such physician or practi- 19 tioner’’ and inserting ‘‘such physician, practi- 20 tioner, federally qualified health center, or rural 21 health clinic’’; and 22 (3) in paragraph (4)— 23 (A) in subparagraph (A), by inserting 24 ‘‘and includes a federally qualified health center 25 or rural health clinic that furnishes a telehealth 26 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 366 IH service to an eligible individual’’ before the pe- 1 riod at the end; and 2 (B) in subparagraph (F), by adding at the 3 end the following new clause: 4 ‘‘(iii) INCLUSION OF RURAL HEALTH 5 CLINIC SERVICES AND FEDERALLY QUALI- 6 FIED HEALTH CENTER SERVICES FUR- 7 NISHED USING TELEHEALTH.—For pur- 8 poses of this subparagraph, the term ‘tele- 9 health services’ includes a rural health 10 clinic service or Federally qualified health 11 center service that is furnished using tele- 12 health to the extent that payment codes 13 corresponding to services identified by the 14 Secretary under clause (i) or (ii) are listed 15 on the corresponding claim for such rural 16 health clinic service or Federally qualified 17 health center service.’’. 18 (b) EFFECTIVE DATE.—The amendments made by 19 this section shall apply to services furnished on or after 20 January 1, 2022. 21 SEC. 4. ELIMINATION OF RESTRICTIONS RELATING TO 22 TELEHEALTH SERVICES. 23 (a) ELIMINATION OF GEOGRAPHIC RESTRICTIONS OF 24 ORIGINATING SITES.—Section 1834(m)(4)(C)(i) of the 25 VerDate Sep 11 2014 20:09 Feb 07, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H366.IH H366 pbinns on DSKJLVW7X2PROD with BILLS 13 •HR 366 IH Social Security Act (42 U.S.C. 1395m(m)(4)(C)(i)) is 1 amended— 2 (1) by striking ‘‘the service is furnished via a 3 telecommunications system and only if such site is 4 located—’’ and inserting ‘‘the service—’’; 5 (2) by redesignating subclauses (I) through 6 (III) as items (aa) through (cc), respectively, and 7 moving the margins two ems to the right; and 8 (3) by inserting before item (aa), as redesig- 9 nated by paragraph (2), the following new sub- 10 clauses: 11 ‘‘(I) is furnished via a tele- 12 communications system; and 13 ‘‘(II) for the period beginning on 14 the date of the enactment of this sub- 15 clause and ending on December 31, 16 2021, only if such site is located—’’. 17 (b) ELIMINATION OF RESTRICTIONS IN WHICH 18 TELEHEALTH [Text truncated for display. Full text available on Congress.gov.]