Evolving Telehealth Policy Brings Opportunities, Concerns

AAFP’s Detailed Feedback to Congress Centers on Longitudinal Primary Care

Feb. 9, 2023, News Staff — In two recent letters, the AAFP delivered full-throated calls to improve telehealth policy, address the behavioral health crisis and protect family physicians’ relationships with their patients.

“During the pandemic, patient messaging increased by more than 50%, requiring a substantial amount of uncompensated clinician time,” the AAFP said. “Physicians should be appropriately compensated for treating patients and providing medical advice through both audio-video and audio-only visits, as well as these asynchronous methods. There must be appropriate payment for electronic communication and evaluations that physicians provide for the medical management of their established patients, such as the time and work spent engaging in inbox messaging through electronic health records.”

Expanding Access and Addressing Behavioral Health

The Academy called for the revised legislation to include  

• permanent removal of geographic and originating site restrictions, so all Medicare beneficiaries can access care at home;
• permanent removal of CMS’ in-person requirement for tele-mental health visits, including for care at federally qualified health centers and rural health clinics;
• removal of remaining telehealth restrictions on alternative payment models;
• creation of a digital health equity pilot program to fund digital health literacy programs for patients, digital health navigators, point-of-care interpretive services, digital tools with non-English language options and tools with assistive technology; and
• establishment of a new program for adults that mirrors the Health Resources and Services Administration Pediatric Mental Health Care Access program, which uses telehealth to promote behavioral health integration into pediatric primary care and has the AAFP’s support.

The PMHCA program, the Academy reminded lawmakers, “has helped address increased mental and behavioral health needs in light of ongoing workforce shortages by meeting children and adolescents where they are.” Pediatric primary care clinicians connected with some 3,000 children and adolescents in 21 states, two-thirds of them in rural or medically underserved counties, who had contacted the pediatric mental health team.

“More than one-third of the U.S. population lives in areas that are underserved by mental health professionals, and more than half (56%) of adults with a mental illness currently receive no treatment,” the AAFP reminded lawmakers. “Given the well-documented shortage of mental and behavioral health clinicians, and the growing demand for specialized care, a HRSA-funded program that provides primary care clinicians with virtual access to specialists could increase timely access to care for adult patients.”

Protecting Patient-Physician Relationship

Not for the first time in recent months, the Academy warned that the dramatic expansion of telehealth since 2020 requires the reinforcement of guardrails that protect the physician-patient relationship.

“The AAFP strongly urges Congress to ensure that the policies contained within this legislation do not inadvertently provide a pathway for direct-to-consumer telehealth vendors to disrupt the comprehensive and longitudinal relationships between patients and their primary care physicians,” the letter said. Among several “significant concerns about the rapid proliferation of DTC telehealth vendors,” the Academy cited a fraud alert from the Office of the Inspector General that centered on telemedicine companies offering “kickbacks for prescribing medically unnecessary items and services for individuals with whom the clinician often does not have a relationship.”

“As noted by the OIG, ‘These types of volume-based fees not only implicate and potentially violate the federal anti-kickback statute, but they also may corrupt medical decision-making, drive inappropriate utilization and result in patient harm,” the Academy wrote. “Our concerns have only become more heightened following recent reports and ongoing federal investigations into these telehealth platforms, and the rise in DTC pharmaceutical advertising that encourages patients to seek prescriptions on specific telehealth platforms. These companies have engaged in potentially unnecessary and inappropriate prescribing practices that fail to prioritize patient safety and lead to care fragmentation.”

To counter this, the Academy urged Congress to enact “telehealth coverage guardrails to protect the quality and continuity of care delivered virtually, such as requiring an established patient relationship for some telehealth services.”

Virtual Referrals and Prescriptions

The Academy complemented its Jan. 30 congressional guidance with a Feb. 6 letter to key federal regulatory bodies that outlined recommendations for policies to better govern virtual referrals and medication prescriptions, particularly for opioid use disorder treatment.

“The Academy strongly supports expanding access to behavioral health services delivered via telehealth,” the AAFP told HHS, the FDA, the Federal Trade Commission, the Department of Justice and the Securities and Exchange Commission. The letter reiterated Academy advocacy for “policies to permanently facilitate virtual prescribing of buprenorphine for opioid use disorder treatment and generally allow access to controlled substances by telemedicine.”

“However, recent reports have indicated that the DEA is concerned that some telehealth providers have abused pandemic waivers by overprescribing drugs,” the AAFP added. “The DEA is reportedly investigating two platforms, Cerebral and Done, for allegedly overprescribing controlled substances used to treat attention-deficit hyperactivity disorder. These ‘on-demand’ telehealth platforms have been promoted directly to consumers via advertising from pharmaceutical companies, which encourage them to use these services to ‘speak with a doctor now’ to obtain a prescription.

“The Academy urges that any direct-to-consumer advertising of prescription drugs by pharmaceutical companies be based on disease state only, without mention of a specific drug by name.”

The letter called on regulators to reinforce or set several conditions for solicitation of patients by DTC advertisers, focusing on accurate and complete information and on the patient-physician relationship.

“If advertisements direct the consumer to a physician, referral should be to the consumer’s family or personal physician,” the Academy wrote. “The AAFP considers it inappropriate and unethical for an advertiser to act as a referring agent, due to the consumer’s lack of awareness of any potential conflict of interest associated with such a referral.

“The AAFP believes that it is inappropriate for pharmaceutical advertising of any kind to occur in EHRs, patient portals and other digital point-of-care environments.”

The letter also urged robust protection of patients’ data privacy, noting the Academy’s support for legislation such as the Health and Location Data Protection Act (S. 4408), which would prohibit data brokers from selling and transferring customers’ health and location data, and would require FTC rule-making and enforcement.

Health Equity

The Jan. 30 letter also called on Congress to

• analyze telehealth use and patient outcomes by race, ethnicity, geographic region, income level, gender and language;
• study telehealth use to analyze volume, patterns and patient outcomes for visits to a patient’s usual source of care versus one-off visits with a clinician with whom the patient has no relationship;
• address health inequities by codifying CMS’ ability to permanently cover and pay for audio-only telehealth services to bridge gaps in access;
• ensure the optimization of telehealth access for Medicare Advantage enrollees, with attention to network adequacy standards; and
• study equitable access to, and use of, telehealth specifically for Medicare Advantage plans.