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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3593 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  2d Session
                                S. 3593

   To amend titles XI and XVIII of the Social Security Act to extend 
  certain telehealth services covered by Medicare and to evaluate the 
impact of telehealth services on Medicare beneficiaries, and for other 
                               purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

             February 8 (legislative day, February 3), 2022

 Ms. Cortez Masto (for herself and Mr. Young) introduced the following 
  bill; which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL

 
   To amend titles XI and XVIII of the Social Security Act to extend 
  certain telehealth services covered by Medicare and to evaluate the 
impact of telehealth services on Medicare beneficiaries, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) In General.--This Act may be cited as the ``Telehealth 
Extension and Evaluation Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Extension of telehealth services.
Sec. 3. Temporary requirements for provision of high-cost durable 
                            medical equipment and laboratory tests.
Sec. 4. Requirement to submit NPI number for telehealth billing.
Sec. 5. Federally qualified health centers and rural health clinics.
Sec. 6. Telehealth flexibilities for critical access hospitals.
Sec. 7. Use of telehealth for the dispensing of controlled substances 
                            by means of the internet.
Sec. 8. Study on the effects of changes to telehealth under the 
                            Medicare and Medicaid programs during the 
                            COVID-19 emergency.

SEC. 2. EXTENSION OF TELEHEALTH SERVICES.

    Section 1135(e) of the Social Security Act (42 U.S.C. 1320b-5(e)) 
is amended by adding at the end the following new paragraph:
            ``(3) Two-year extension of telehealth services following 
        the covid-19 emergency period.--Notwithstanding any other 
        provision of this section, a waiver or modification of 
        requirements pursuant to subsection (b)(8) shall terminate on 
        the date that is 2 years after the last day of the emergency 
        period described in subsection (g)(1)(B).''.

SEC. 3. TEMPORARY REQUIREMENTS FOR PROVISION OF HIGH-COST DURABLE 
              MEDICAL EQUIPMENT AND LABORATORY TESTS.

    (a) High-Cost Durable Medical Equipment.--Section 1834(a)(1)(E) of 
the Social Security Act (42 U.S.C. 1395m(a)(1)(E)) is amended by adding 
at the end the following new clauses:
                            ``(vi) Standards for high-cost durable 
                        medical equipment.--
                                    ``(I) Limitation on payment for 
                                high-cost durable medical equipment.--
                                During the 2-year period beginning on 
                                the day after the last day of the 
                                emergency period described in section 
                                1135(g)(1)(B), payment may not be made 
                                under this subsection for high-cost 
                                durable medical equipment ordered by a 
                                physician or other practitioner 
                                described in clause (ii) via telehealth 
                                for an individual, unless such 
                                physician or practitioner furnished to 
                                such individual a service in person at 
                                least once during the 12-month period 
                                prior to ordering such high-cost 
                                durable medical equipment.
                                    ``(II) High-cost durable medical 
                                equipment defined.--For purposes of 
                                this clause, the term `high-cost 
                                durable medical equipment' means, with 
                                respect to a year, durable medical 
                                equipment for which payment may be made 
                                under paragraphs (2) through (8), the 
                                price under the clinical lab fee 
                                schedule which for such year is in the 
                                highest quartile of national purchase 
                                prices of durable medical equipment 
                                payable for such year.
                            ``(vii) Audit of providers and 
                        practitioners furnishing a high volume of 
                        durable medical equipment via telehealth.--
                                    ``(I) Identification of 
                                providers.--During the 2-year period 
                                beginning on the day after the last day 
                                of the emergency period described in 
                                section 1135(g)(1)(B), Medicare 
                                administrative contractors shall 
                                conduct reviews, on a schedule 
                                determined by the Secretary, of claims 
                                for durable medical equipment 
                                prescribed by a physician or other 
                                practitioner described in clause (ii) 
                                during the 12-month period preceding 
                                such review to identify physicians or 
                                other practitioners with respect to 
                                whom at least 90 percent of all durable 
                                medical equipment prescribed by such 
                                physician or practitioner during such 
                                period was prescribed pursuant to a 
                                telehealth visit.
                                    ``(II) Audit.--In the case of a 
                                physician or practitioner identified 
                                under subclause (I), with respect to a 
                                12-month period described in such 
                                subclause, the Medicare administrative 
                                contractors shall conduct audits of all 
                                claims for durable medical equipment 
                                prescribed by such physicians or 
                                practitioners to determine whether such 
                                claims comply with the requirements for 
                                coverage under this title.''.
    (b) High-Cost Laboratory Tests.--Section 1834A(b) of the Social 
Security Act (42 U.S.C. 1395m-1(b)) is amended by adding at the end the 
following new paragraphs:
            ``(6) Requirement for high-cost laboratory tests.--
                    ``(A) Limitation on payment for high-cost 
                laboratory tests.--During the 2-year period beginning 
                on the day after the last day of the emergency period 
                described in section 1135(g)(1)(B), payment may not be 
                made under this subsection for a high-cost laboratory 
                test ordered by a physician or practitioner via 
                telehealth for an individual, unless such physician or 
                practitioner furnished to such individual a service in 
                person at least once during the 12-month period prior 
                to ordering such high-cost laboratory test.
                    ``(B) High-cost laboratory test defined.--For 
                purposes of this paragraph, the term `high-cost 
                laboratory test' means, with respect to a year, a 
                laboratory test for which payment may be made under 
                this section, and the purchase price of which for such 
                year is in the highest quartile of purchase prices of 
                laboratory tests for such year.
            ``(7) Audit of laboratory testing ordered pursuant to 
        telehealth visit.--
                    ``(A) Identification of providers.--During the 2-
                year period beginning on the day after the last day of 
                the emergency period described in section 
                1135(g)(1)(B), Medicare administrative contractors 
                shall conduct periodic reviews, on a schedule 
                determined by the Secretary, of claims for laboratory 
                tests prescribed by a physician or practitioner during 
                the 12-month period preceding such review to identify 
                physicians or other practitioners with respect to whom 
                at least 90 percent of all laboratory tests prescribed 
                by such physician or practitioner during such period 
                were prescribed pursuant to a telehealth visit.
                    ``(B) Audit.--In the case of a physician or 
                practitioner identified under subparagraph (A), with 
                respect to a 12-month period described in such 
                subparagraph, the Medicare administrative contractors 
                shall conduct audits of all claims for laboratory tests 
                prescribed by such physicians or practitioners during 
                such period to determine whether such claims comply 
                with the requirements for coverage under this title.''.

SEC. 4. REQUIREMENT TO SUBMIT NPI NUMBER FOR TELEHEALTH BILLING.

    Section 1834(m) of the Social Security Act (42 U.S.C. 1395m(m)) is 
amended--
            (1) in the first sentence of paragraph (1), by striking 
        ``paragraph (8)'' and inserting ``paragraphs (8) and (9)''; and
            (2) by adding at the end the following new paragraph:
            ``(9) Requirement to submit npi number for telehealth 
        billing.--During the 2-year period beginning on the day after 
        the last day of the emergency period described in section 
        1135(g)(1)(B), payment may not be made under this subsection 
        for telehealth services furnished by a physician or 
        practitioner unless such physician or practitioner submits a 
        claim for payment under the national provider identification 
        number assigned to such physician or practitioner.''.

SEC. 5. FEDERALLY QUALIFIED HEALTH CENTERS AND RURAL HEALTH CLINICS.

    Section 1834(m)(8) of the Social Security Act (42 U.S.C. 
1395m(m)(8)) is amended--
            (1) in the paragraph heading by inserting ``and the 2-year 
        period after such emergency period'' after ``period'';
            (2) in subparagraph (A), in the matter preceding clause 
        (i), by inserting ``and the 2-year period immediately following 
        such emergency period'' after ``1135(g)(1)(B)''; and
            (3) by striking subparagraph (B) and inserting the 
        following:
                    ``(B) Payment.--
                            ``(i) In general.--A telehealth service 
                        furnished by a Federally qualified health 
                        center or a rural health clinic to an 
                        individual pursuant to this paragraph on or 
                        after the date of the enactment of this 
                        subparagraph shall be deemed to be so furnished 
                        to such individual as an outpatient of such 
                        clinic or facility (as applicable) for purposes 
                        of paragraph (1) or (3), respectively, of 
                        section 1861(aa) and payable as a Federally 
                        qualified health center service or rural health 
                        clinic service (as applicable) under the 
                        prospective payment system established under 
                        section 1834(o) or under section 1833(a)(3), 
                        respectively.
                            ``(ii) Treatment of costs for fqhc pps 
                        calculations and rhc air calculations.--Costs 
                        associated with the delivery of telehealth 
                        services by a Federally qualified health center 
                        or rural health clinic serving as a distant 
                        site pursuant to this paragraph shall be 
                        considered allowable costs for purposes of the 
                        prospective payment system established under 
                        section 1834(o) and any payment methodologies 
                        developed under section 1833(a)(3), as 
                        applicable.''.

SEC. 6. TELEHEALTH FLEXIBILITIES FOR CRITICAL ACCESS HOSPITALS.

    Section 1834(m) of the Social Security Act (42 U.S.C. 1395m(m)), as 
amended by section 4, is amended--
            (1) in the first sentence of paragraph (1), by striking 
        ``and (9)'' and inserting ``, (9) and (10)'';
            (2) in paragraph (2)(A), by striking ``paragraph (8)'' and 
        inserting ``paragraphs (8) and (10)'';
            (3) in paragraph (4)--
                    (A) in subparagraph (A), by striking ``paragraph 
                (8)'' and inserting ``paragraphs (8) and (10)'';
                    (B) in subparagraph (F)(i), by striking ``paragraph 
                (8)'' and inserting ``paragraphs (8) and (10)''; and
            (4) by adding at the end the following new paragraph:
            ``(10) Telehealth flexibilities for critical access 
        hospitals.--
                    ``(A) In general.--During the period beginning on 
                the date of the enactment of this paragraph and ending 
                on the date that is 2 years after the end of the 
                emergency period described in section 1135(g)(1)(B), 
                the following shall apply:
                            ``(i) The Secretary shall pay for 
                        telehealth services that are furnished via a 
                        telecommunications system by a critical access 
                        hospital, including any practitioner authorized 
                        to provide such services within the facility, 
                        that is a qualified provider (as defined in 
                        subparagraph (B)) to an eligible telehealth 
                        individual enrolled under this part 
                        notwithstanding that the critical access 
                        hospital providing the telehealth service is 
                        not at the same location as the beneficiary, if 
                        such services complement a plan of care that 
                        includes in-person care at some point, as may 
                        be appropriate.
                            ``(ii) The amount of payment to a critical 
                        access hospital that serves as a distant site 
                        for such a telehealth service shall be 
                        determined under subparagraph (B).
                            ``(iii) For purposes of this subsection--
                                    ``(I) the term `distant site' 
                                includes a critical access hospital 
                                that furnishes a telehealth service to 
                                an eligible telehealth individual;
                                    ``(II) the term `qualified 
                                provider' means, with respect to a 
                                telehealth service described in clause 
                                (i) that is furnished to an eligible 
                                telehealth individual, a critical 
                                access hospital that has an established 
                                patient relationship with such 
                                individual as defined by the State in 
                                which the individual is located; and
                                    ``(III) the term `telehealth 
                                services' includes behavioral health 
                                services and any other outpatient 
                                critical access hospital service that 
                                is furnished using telehealth to the 
                                extent that payment codes corresponding 
                                to services identified by the Secretary 
                                under clause (i) or (ii) of paragraph 
                                (4)(F) are listed on the corresponding 
                                claim for such critical access hospital 
                                service.
                    ``(B) Payment.--For purposes of subparagraph 
                (A)(ii), the amount of payment to a critical access 
                hospital that serves as a distant site that furnishes a 
                telehealth service to an eligible telehealth individual 
                under this paragraph shall be equal to 101 percent of 
                the reasonable costs of the hospital in providing such 
                services, unless the hospital makes an election under 
                paragraph (2) of section 1834(g) to be paid for such 
                services based on the methodology described in such 
                paragraph. Telehealth services furnished by a critical 
                access hospital shall be counted for purposes of 
                determining the provider productivity rate of the 
                critical access hospital for purposes of payment under 
                such section.
                    ``(C) Implementation.--Notwithstanding any other 
                provision of law, the Secretary may implement this 
                paragraph through program instruction, interim final 
                rule, or otherwise.''.

SEC. 7. USE OF TELEHEALTH FOR THE DISPENSING OF CONTROLLED SUBSTANCES 
              BY MEANS OF THE INTERNET.

    Section 309(e)(2) of the Controlled Substances Act (21 U.S.C. 
829(e)(2)) is amended--
            (1) in subparagraph (A)(i)--
                    (A) by striking ``at least 1 in-person medical 
                evaluation'' and inserting the following: ``at least--
                                    ``(I) 1 in-person medical 
                                evaluation''; and
                    (B) by adding at the end the following:
                                    ``(II) during the period beginning 
                                on the date of the enactment of this 
                                subclause and ending on the date that 
                                is 2 years after the end of the 
                                emergency period described in section 
                                1135(g)(1)(B) of the Social Security 
                                Act (42 U.S.C. 1320b-5(g)(1)(B)), for 
                                purposes of prescribing a controlled 
                                substance in schedules II through V, 1 
                                telehealth evaluation; or''; and
            (2) by adding at the end the following:
                    ``(D)(i) The term `telehealth evaluation' means a 
                medical evaluation that is conducted in accordance with 
                applicable Federal and State laws by a practitioner 
                (other than a pharmacist) who is at a location remote 
                from the patient and is communicating with the patient 
                using a telecommunications system referred to in 
                section 1834(m) of the Social Security Act (42 U.S.C. 
                1395m(m)) that includes, at a minimum, audio and video 
                equipment permitting two-way, real-time interactive 
                communication between the patient and distant site 
                practitioner.
                    ``(ii) Nothing in clause (i) shall be construed to 
                imply that 1 telehealth evaluation demonstrates that a 
                prescription has been issued for a legitimate medical 
                purpose within the usual course of professional 
                practice.
                    ``(iii) A practitioner who prescribes the drugs or 
                combination of drugs that are covered under section 
                303(g)(2)(C) using the authority under subparagraph 
                (A)(i)(II) of this paragraph shall adhere to nationally 
                recognized evidence-based guidelines for the treatment 
                of patients with opioid use disorders and a diversion 
                control plan, as those terms are defined in section 8.2 
                of title 42, Code of Federal Regulations, as in effect 
                on the date of enactment of this subparagraph.''.

SEC. 8. STUDY ON THE EFFECTS OF CHANGES TO TELEHEALTH UNDER THE 
              MEDICARE AND MEDICAID PROGRAMS DURING THE COVID-19 
              EMERGENCY.

    (a) In General.--Not later than 1 year after the date of the 
enactment of this Act, the Secretary of Health and Human Services (in 
this section referred to as the ``Secretary'') shall conduct a study 
and submit to the Committee on Energy and Commerce and the Committee on 
Ways and Means of the House of Representatives and the Committee on 
Finance of the Senate an interim report on any changes made to the 
provision or availability of telehealth services under part A or B of 
title XVIII of the Social Security Act (including by reason of the 
amendments made to the Controlled Substances Act under section 7) since 
the start of the emergency period described in section 1135(g)(1)(B) of 
the Social Security Act (42 U.S.C. 1320b-5(g)(1)(B)). Such report shall 
include the following:
            (1) A summary of utilization of all health care services 
        furnished under such part A or B during such emergency period, 
        including the number of telehealth visits (broken down by 
        service type, the number of such visits furnished via audio-
        visual technology, the number of such visits furnished via 
        audio-only technology, and the number of such visits furnished 
        by a Federally qualified health center, rural health clinic, or 
        community health center, respectively, if practicable), in-
        person outpatient visits, inpatient admissions, and emergency 
        department visits.
            (2) A description of any changes in utilization patterns 
        for the care settings described in paragraph (1) over the 
        course of such emergency period compared to such patterns prior 
        to such emergency period.
            (3) An analysis of utilization of telehealth services under 
        such part A or B during such emergency period, broken down by 
        race and ethnicity, geographic region, and income level (as 
        measured directly or indirectly, such as by patient's zip code 
        tabulation area median income as publicly reported by the 
        United States Census Bureau), and of any trends in such 
        utilization during such emergency period, so broken down. Such 
        analysis may not include any personally identifiable 
        information or protected health information.
            (4) A description of expenditures and any savings under 
        such part A or B attributable to use of such telehealth 
        services during such emergency period.
            (5) A description of any instances of fraud identified by 
        the Secretary, acting through the Office of the Inspector 
        General or other relevant agencies and departments, with 
        respect to such telehealth services furnished under such part A 
        or B during such emergency period and a comparison of the 
        number of such instances with the number of instances of fraud 
        so identified with respect to in-person services so furnished 
        during such emergency period.
            (6) A description of any privacy concerns with respect to 
        the furnishing of such telehealth services (such as 
        cybersecurity or ransomware concerns), including a description 
        of any actions taken by the Secretary, acting through the 
        Health Sector Cybersecurity Coordination Center or other 
        relevant agencies and departments, during such emergency period 
        to assist health care providers secure telecommunications 
        systems.
            (7) Identification of common ICD-10 codes billed via 
        telehealth, comparing measures of quality and outcomes between 
        telehealth care and in-person care for the same category of 
        service.
            (8) Recommendations regarding the permanency of the waivers 
        and authorities under the provisions of, and amendments made 
        by, this Act.
    (b) Consultation.--In conducting the study and submitting the 
report under subsection (a), the Secretary--
            (1) shall consult with--
                    (A) the Medicaid and CHIP Payment and Access 
                Commission;
                    (B) the Medicare Payment Advisory Commission;
                    (C) the Office of Inspector General of the 
                Department of Health and Human Services; and
                    (D) other stakeholders determined appropriate by 
                the Secretary, such as patients, tribal communities, 
                medical professionals, health facilities, State medical 
                boards, State nursing boards, telehealth providers, 
                health professional liability providers, public and 
                private payers, and State leaders; and
            (2) shall endeavor to include as many racially, ethnically, 
        geographically, and professionally diverse perspectives as 
        possible.
    (c) Final Report.--Not later than 18 months after the end of the 
emergency period described in section 1135(g)(1)(B) of the Social 
Security Act (42 U.S.C. 1320b-5(g)(1)(B)), the Secretary shall--
            (1) update and finalize the interim report under subsection 
        (a); and
            (2) submit such updated and finalized report to the 
        committees specified in such subsection.
    (d) Grants for Medicaid Reports.--
            (1) In general.--Not later than January 1, 2023, the 
        Secretary shall award grants to States with a State plan (or 
        waiver of such plan) in effect under title XIX of the Social 
        Security Act (42 U.S.C. 1396r) that submit an application under 
        this subsection for purposes of enabling such States to study 
        and submit reports to the Secretary on any changes made to the 
        provision or availability of telehealth services under such 
        plans (or such waivers) during such period.
            (2) Eligibility.--To be eligible to receive a grant under 
        paragraph (1), a State shall--
                    (A) provide benefits for telehealth services under 
                the State plan (or waiver of such plan) in effect under 
                title XIX of the Social Security Act (42 U.S.C. 1396r);
                    (B) be able to differentiate telehealth from in-
                person visits within claims data submitted under such 
                plan (or such waiver) during such period; and
                    (C) submit to the Secretary an application at such 
                time, in such manner, and containing such information 
                (including the amount of the grant requested) as the 
                Secretary may require.
            (3) Use of funds.--A State shall use amounts received under 
        a grant under this subsection to conduct a study and report 
        findings regarding the effects of changes to telehealth 
        services offered under the State plan (or waiver of such plan) 
        of such State under title XIX of the Social Security Act (42 
        U.S.C. 1396 et seq.) during such period in accordance with 
        paragraph (4).
            (4) Reports.--
                    (A) Interim report.--Not later 1 year after the 
                date a State receives a grant under this subsection, 
                the State shall submit to the Secretary an interim 
                report that--
                            (i) details any changes made to the 
                        provision or availability of telehealth 
                        benefits (such as eligibility, coverage, or 
                        payment changes) under the State plan (or 
                        waiver of such plan) of the State under title 
                        XIX of the Social Security Act (42 U.S.C. 1396 
                        et seq.) during the emergency period described 
                        in paragraph (1); and
                            (ii) contains--
                                    (I) a summary and description of 
                                the type described in paragraphs (1) 
                                and (2), respectively, of subsection 
                                (a); and
                                    (II) to the extent practicable, an 
                                analysis of the type described in 
                                paragraph (3) of subsection (a),
                        except that any reference in such subsection to 
                        ``such part A or B'' shall, for purposes of 
                        subclauses (I) and (II), be treated as a 
                        reference to such State plan (or waiver).
                    (B) Final report.--Not later than 3 years after the 
                date a State receives a grant under this subsection, 
                the State shall update and finalize the interim report 
                and submit such final report to the Secretary.
                    (C) Report by secretary.--Not later than the 
                earlier of the date that is 1 year after the submission 
                of all final reports under subparagraph (B) and 
                December 31, 2027, the Secretary shall submit to 
                Congress a report on the grant program, including a 
                summary of the reports received from States under this 
                paragraph.
            (5) Modification authority.--The Secretary may modify any 
        deadline described in paragraph (4) or any information required 
        to be included in a report made under this subsection to 
        provide flexibility for States to modify the scope of the study 
        and timeline for such reports.
            (6) Technical assistance.--The Secretary shall provide such 
        technical assistance as may be necessary to a State receiving a 
        grant under this subsection in order to assist such State in 
        conducting studies and submitting reports under this 
        subsection.
            (7) State.--For purposes of this subsection, the term 
        ``State'' means each of the several States, the District of 
        Columbia, and each territory of the United States.
    (e) Authorization of Appropriations.--
            (1) Medicare.--For the purpose of carrying out subsections 
        (a) through (c), there are authorized to be appropriated such 
        sums as may be necessary for each of fiscal years 2022 through 
        2026.
            (2) Medicaid.--For the purpose of carrying out subsection 
        (d), there are authorized to be appropriated such sums as may 
        be necessary for each of fiscal years 2023 through 2027.
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