Protecting Rural Telehealth Access Act

II 118TH CONGRESS 1ST SESSION S. 1636 To amend title XVIII of the Social Security Act to protect access to telehealth services under the Medicare program. IN THE SENATE OF THE UNITED STATES MAY 17, 2023 Mr. MANCHIN (for himself, Ms. ERNST, Mrs. SHAHEEN, and Mr. MORAN) in- troduced the following bill; which was read twice and referred to the Com- mittee on Finance A BILL To amend title XVIII of the Social Security Act to protect access to telehealth services under the Medicare program. 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 Rural Tele- 4 health Access Act’’. 5 SEC. 2. ELIMINATION OF RESTRICTIONS RELATING TO 6 TELEHEALTH SERVICES. 7 (a) ELIMINATION OF GEOGRAPHIC REQUIREMENTS 8 FOR ORIGINATING SITES.—Section 1834(m)(4)(C) of the 9 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1636 IS Social Security Act (42 U.S.C. 1395m(m)(4)(C)) is 1 amended— 2 (1) in clause (i), in the matter preceding sub- 3 clause (I), by striking ‘‘clause (iii)’’ and inserting 4 ‘‘clauses (iii) and (iv)’’; and 5 (2) by adding at the end the following new 6 clause: 7 ‘‘(iv) ELIMINATION OF GEOGRAPHIC 8 REQUIREMENTS FOR ORIGINATING 9 SITES.—The geographic requirements de- 10 scribed in clause (i) shall not apply with 11 respect to telehealth services furnished on 12 or after January 1, 2025.’’. 13 (b) ELIMINATION OF RESTRICTIONS IN WHICH 14 TELEHEALTH SERVICES MAY BE FURNISHED IN THE 15 HOME.—Section 1834(m)(4)(C)(ii)(X) of the Social Secu- 16 rity Act (42 U.S.C. 1395m(m)(4)(C)(i)(X) is amended to 17 read as follows:. 18 ‘‘(X)(aa) For the period begin- 19 ning on the date of the enactment of 20 this subclause and ending on Decem- 21 ber 31, 2024, the home of an indi- 22 vidual but only for purposes of section 23 1881(b)(3)(B) or telehealth services 24 described in paragraph (7). 25 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1636 IS ‘‘(bb) For the period beginning 1 on or after January 1, 2025, the 2 home of an individual.’’. 3 (c) ELIMINATION OF RESTRICTIONS ON STORE-AND- 4 FORWARD TECHNOLOGIES.—The second sentence of sec- 5 tion 1834(m)(1) of the Social Security Act (42 U.S.C. 6 1395m(m)(1)) is amended by striking ‘‘in the case of any 7 Federal telemedicine demonstration program conducted in 8 Alaska or Hawaii,’’. 9 SEC. 3. TELEHEALTH FLEXIBILITIES FOR CRITICAL ACCESS 10 HOSPITALS. 11 Section 1834(m) of the Social Security Act (42 12 U.S.C. 1395m(m)) is amended— 13 (1) in the first sentence of paragraph (1), by 14 striking ‘‘and (9)’’ and inserting ‘‘(9), and (10)’’; 15 (2) in paragraph (2)(A), by striking ‘‘paragraph 16 (8)’’ and inserting ‘‘paragraphs (8) and (10)’’; 17 (3) in paragraph (4)— 18 (A) in subparagraph (A), by striking 19 ‘‘paragraph (8)’’ and inserting ‘‘paragraphs (8) 20 and (10)’’; and 21 (B) in subparagraph (F)(i), by striking 22 ‘‘paragraph (8)’’ and inserting ‘‘paragraphs (8) 23 and (10)’’; and 24 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1636 IS (4) by adding at the end the following new 1 paragraph: 2 ‘‘(10) TELEHEALTH FLEXIBILITIES FOR CRIT- 3 ICAL ACCESS HOSPITALS.— 4 ‘‘(A) IN GENERAL.—On or after the date 5 of the enactment of this paragraph— 6 ‘‘(i) the Secretary shall pay for tele- 7 health services that are furnished via a 8 telecommunications system by a critical ac- 9 cess hospital, including any practitioner 10 authorized to provide such services within 11 the facility, that is a qualified provider (as 12 defined in subparagraph (B)) to an eligible 13 telehealth individual enrolled under this 14 part notwithstanding that the critical ac- 15 cess hospital providing the telehealth serv- 16 ice is not at the same location as the bene- 17 ficiary, if such services complement a plan 18 of care that includes in-person care at 19 some point, as may be appropriate; 20 ‘‘(ii) the amount of payment to a crit- 21 ical access hospital that serves as a distant 22 site for such a telehealth service shall be 23 determined under subparagraph (C); and 24 ‘‘(iii) for purposes of this subsection— 25 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1636 IS ‘‘(I) the term ‘distant site’ in- 1 cludes a critical access hospital that 2 furnishes a telehealth service to an eli- 3 gible telehealth individual; and 4 ‘‘(II) the term ‘telehealth serv- 5 ices’ includes behavioral health serv- 6 ices and any other outpatient critical 7 access hospital service that is fur- 8 nished using telehealth to the extent 9 that payment codes corresponding to 10 services identified by the Secretary 11 under clause (i) or (ii) of paragraph 12 (4)(F) are listed on the corresponding 13 claim for such critical access hospital 14 service. 15 ‘‘(B) DEFINITION OF QUALIFIED PRO- 16 VIDER.—For purposes of this subsection, the 17 term ‘qualified provider’ means, with respect to 18 a telehealth service described in subparagraph 19 (A)(i) that is furnished to an eligible telehealth 20 individual, a critical access hospital that has an 21 established patient relationship with such indi- 22 vidual as defined by the State in which the indi- 23 vidual is located. 24 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1636 IS ‘‘(C) PAYMENT.—The amount of payment 1 to a critical access hospital that serves as a dis- 2 tant site that furnishes a telehealth service to 3 an eligible telehealth individual under this para- 4 graph shall be equal to 101 percent of the rea- 5 sonable costs of the hospital in providing such 6 services, unless the hospital makes an election 7 under paragraph (2) of section 1834(g) to be 8 paid for such services based on the methodology 9 described in such paragraph. Telehealth services 10 furnished by a critical access hospital shall be 11 counted for purposes of determining the pro- 12 vider productivity rate of the critical access hos- 13 pital for purposes of payment under such sec- 14 tion. 15 ‘‘(D) IMPLEMENTATION.—Notwithstanding 16 any other provision of law, the Secretary may 17 implement this paragraph through program in- 18 struction, interim final rule, or otherwise.’’. 19 SEC. 4. EXTENDING MEDICARE TELEHEALTH FLEXIBILI- 20 TIES FOR FEDERALLY QUALIFIED HEALTH 21 CENTERS AND RURAL HEALTH CLINICS. 22 Section 1834(m)(8) of the Social Security Act (42 23 U.S.C. 1395m(m)(8)), as amended by section 4113(c) of 24 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1636 IS division FF of the Consolidated Appropriations Act, 2023 1 (Public Law 117–328) is amended— 2 (1) in subparagraph (A), in the matter pre- 3 ceding clause (i), by inserting ‘‘, and on or after 4 January 1, 2025’’ after ‘‘December 31, 2024’’; 5 (2) by striking subparagraph (B) and inserting 6 the following: 7 ‘‘(B) PAYMENT.— 8 ‘‘(i) IN GENERAL.—A telehealth serv- 9 ice furnished by a Federally qualified 10 health center or a rural health clinic to an 11 eligible telehealth individual pursuant to 12 this paragraph or after the date of the en- 13 actment of this subparagraph shall be re- 14 imbursed under this title at a separate 15 telehealth payment rate as determined 16 under the methodology established by the 17 Secretary pursuant to clause (ii). 18 ‘‘(ii) PAYMENT METHODOLOGY.—The 19 Secretary shall establish a methodology for 20 determining the appropriate payment rate 21 for telehealth services described in clause 22 (i). Such methodology shall consider— 23 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1636 IS ‘‘(I) the geography of Federally 1 qualified health centers and rural 2 health clinics; 3 ‘‘(II) costs associated with the 4 delivery of such telehealth services as 5 allowable costs for the center or clinic; 6 and 7 ‘‘(III) the full cost of providing 8 the services via telehealth. 9 ‘‘(iii) IMPLEMENTATION.— 10 ‘‘(I) CODING SYSTEM.—The Sec- 11 retary shall establish an effective cod- 12 ing system for telehealth services de- 13 scribed in clause (i) that is reflective 14 of the services provided at a center or 15 clinic. 16 ‘‘(II) IMPLEMENTATION.—Not- 17 withstanding any other provision of 18 law, the Secretary may implement this 19 subparagraph through program in- 20 struction, interim final rule, or other- 21 wise.’’; and 22 (3) by adding at the end the following new sub- 23 paragraph: 24 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1636 IS ‘‘(C) REQUIREMENT DURING ADDITIONAL 1 PERIOD.— 2 ‘‘(i) IN GENERAL.—Beginning on Jan- 3 uary 1, 2025, payment may only be made 4 under this paragraph for a telehealth serv- 5 ice described in subparagraph (A)(i) that 6 is furnished to an eligible telehealth indi- 7 vidual if such service is furnished by a 8 qualified provider (as defined in clause 9 (ii)). 10 ‘‘(ii) DEFINITION OF QUALIFIED PRO- 11 VIDER.—For purposes of this subpara- 12 graph, the term ‘qualified provider’ means, 13 with respect to a telehealth service de- 14 scribed in subparagraph (A)(i) that is fur- 15 nished to an eligible telehealth individual, a 16 Federally qualified health center or rural 17 health clinic that has an established pa- 18 tient relationship with such individual as 19 defined by the State in which the indi- 20 vidual is located.’’. 21 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1636 IS SEC. 5. ALLOWANCE OF CERTAIN TELEHEALTH SERVICES 1 FURNISHED USING AUDIO-ONLY TECH- 2 NOLOGY. 3 Section 1834(m)(4) of the Social Security Act (42 4 U.S.C. 1395m(m)(4)) of the Social Security Act (42 5 U.S.C. 1395m(m)(4)) is amended by adding at the end 6 the following new subparagraph: 7 ‘‘(G) TELECOMMUNICATIONS SYSTEM.— 8 ‘‘(i) IN GENERAL.—Notwithstanding 9 paragraph (1) and section 410.78(a)(3) of 10 title 42, Code of Federal Regulations (or 11 any successor regulation), subject to clause 12 (v), on or after January, 2025, the term 13 ‘telecommunications system’ includes, in 14 the case of the furnishing of a specified 15 telehealth service (as defined in clause (ii)) 16 a communications system that uses audio- 17 only technology. 18 ‘‘(ii) SPECIFIED TELEHEALTH SERV- 19 ICE.—In this subparagraph, the term 20 ‘specified telehealth service’ means a tele- 21 health service described in clause (iii) that 22 is furnished by a qualified provider (as de- 23 fined in clause (iv)). 24 ‘‘(iii) TELEHEALTH SERVICE DE- 25 SCRIBED.—Subject to clause (vi), a tele- 26 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1636 IS health service described in this clause is a 1 telehealth service consisting of— 2 ‘‘(I) evaluation and management 3 services; 4 ‘‘(II) behavioral health counseling 5 and educational services; and 6 ‘‘(III) other services determined 7 appropriate by the Secretary. 8 ‘‘(iv) QUALIFIED PROVIDER DE- 9 FINED.— 10 ‘‘(I) IN GENERAL.—For purposes 11 of clause (ii), the term ‘qualified pro- 12 vider’ means, with respect to a speci- 13 fied telehealth service that is fur- 14 nished to an eligible telehealth indi- 15 vidual— 16 ‘‘(aa) a physician or practi- 17 tioner who has an established pa- 18 tient relationship with such indi- 19 vidual as defined by the State in 20 which the individual is located; or 21 ‘‘(bb) a critical access hos- 22 pital (as defined in section 23 1861(mm)(1)), a rural health 24 clinic (as defined in section 25 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1636 IS 1861(aa)(2)), a Federally quali- 1 fied health center (as defined in 2 section 1861(aa)(4)), a hospital 3 (as defined in section 1861(e)), a 4 hospital-based or critical access 5 hospital-based renal dialysis cen- 6 ter (including satellites), a skilled 7 nursing facility (as defined in 8 section 1819(a)), a community 9 mental health center (as defined 10 in section 1861(ff)(3)(B)), or a 11 rural emergency hospital (as de- 12 fined in section 1861(kkk)(2)). 13 ‘‘(v) AUTHORITY.—For purposes of 14 this subparagraph, the Secretary may de- 15 termine whether it is clinically appropriate 16 to furnish a specified telehealth service via 17 a communications system that uses audio- 18 only technology and whether an in-person 19 initial visit (in addition to any requirement 20 with respect to the furnishing of an item 21 or service in person pursuant to clause 22 (iv)(I)) is required prior to the furnishing 23 of such service using such technology. 24 ‘‘(vi) REVIEW.— 25 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 13 •S 1636 IS ‘‘(I) IN GENERAL.—Not later 1 than 5 years after the date of the en- 2 actment of this subparagraph, the 3 Secretary shall conduct a review of 4 the furnishing of specified telehealth 5 services through audio-only technology 6 pursuant to this paragraph. Such re- 7 view shall include an analysis of the 8 impact of the roll out of broadband 9 technology and whether the use of 10 audio-only technology is necessary to 11 ensure access to such telehealth serv- 12 ices. 13 ‘‘(II) REDETERMINATION OF 14 SPECIFIED TELEHEALTH SERVICES.— 15 The Secretary may, based on the re- 16 view conducted under subclause (I), 17 provide for the addition or deletion of 18 services (and HCPCS codes), as ap- 19 propriate, to those specified in clause 20 (ii) that may be furnished using 21 audio-only technology and authorized 22 for payment pursuant to this subpara- 23 graph. 24 VerDate Sep 11 2014 01:30 Jun 06, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1636.IS S1636 kjohnson on DSK79L0C42PROD with BILLS 14 •S 1636 IS ‘‘(vii) CLARIFICATION REGARDING 1 PAYMENT.—The amount of payment for a 2 specified telehealth service that is fur- 3 nished using audio-only technology shall be 4 equal to [Text truncated for display. 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