I 116th CONGRESS 2d Session H. R. 7992 IN THE HOUSE OF REPRESENTATIVES August 7, 2020 Mrs. Wagner introduced the following bill; which was referred to the Committee on Energy and Commerce , and in addition to the Committees on Ways and Means , the Judiciary , and Veterans' Affairs , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To expand access to telehealth services, and for other purposes.

1. Short title This Act may be cited as the Telehealth Act . I VA Mission Telehealth Clarification 101. Licensure of health care professionals providing treatment via telemedicine Section 1730C(b) of title 38, United States Code, is amended to read as follows: (b) Covered health care professionals For purposes of this section, a covered health care professional is any of the following individuals: (1) A health care professional who— (A) is an employee of the Department appointed under the authority under section 7306, 7401, 7405, 7406, or 7408 of this title or title 5; (B) is authorized by the Secretary to provide health care under this chapter; (C) is required to adhere to all standards for quality relating to the provision of medicine in accordance with applicable policies of the Department; and (D) has an active, current, full, and unrestricted license, registration, or certification in a State to practice the health care profession of the health care professional. (2) A health professional trainee who— (A) is appointed under section 7405 or 7406 of this title; and (B) is under the clinical supervision of a health care professional described in paragraph (1). . II Advancing Telehealth Beyond COVID–19 201. Permitting the Secretary of Health and Human Services to waive requirements relating to the furnishing of telehealth services under the Medicare program Section 1834(m) of the Social Security Act ( 42 U.S.C. 1395m(m) ) is amended by adding at the end the following new paragraph: (9) Authority to waive telehealth requirements Notwithstanding any other provision of this subsection, the Secretary may waive any such provision for any area and time period specified by the Secretary. . 202. Making permanent the ability of federally qualified health centers and rural health clinics to furnish telehealth services under the Medicare program Section 1834(m)(8) of the Social Security Act ( 42 U.S.C. 1395m(m)(8) ) is amended— (1) in the header, by striking during emergency period ; (2) in subparagraph (A), in the matter preceding clause (i), by striking During and inserting Beginning on the first day of ; and (3) in subparagraph (B)(i), by striking during such emergency period . 203. Clarification for fraud and abuse laws regarding technologies provided to beneficiaries Section 1128A(i)(6) of the Social Security Act (42 U.S.C. 1320a–7a(i)(6)) is amended— (1) in subparagraph (I), by striking ; or and inserting a semicolon; (2) in subparagraph (J), by striking the period at the end and inserting ; or ; and (3) by adding at the end the following new subparagraph: (K) the provision of technologies (as defined by the Secretary) on or after the date of the enactment of this subparagraph, by a provider of services or supplier (as such terms are defined for purposes of title XVIII) directly to an individual who is entitled to benefits under part A of title XVIII, enrolled under part B of such title, or both, for the purpose of furnishing telehealth services, remote patient monitoring services, or other services furnished through the use of technology (as defined by the Secretary), if— (i) the technologies are not offered as part of any advertisement or solicitation; and (ii) the provision of the technologies meets any other requirements set forth in regulations promulgated by the Secretary. . III Enhance Access to Support Essential Behavioral Health Services 301. Findings Congress finds as follows: (1) Nearly 18 percent of adults in the United States reported a mental, behavioral, or emotional disorder in 2015. (2) Children are also significantly impacted. According to the Centers for Disease Control and Prevention, 1 in 6 children ages 2 years through 8 years have a diagnosed mental, behavioral, or developmental disorder, indicating that disorders begin in early childhood and affect lifelong health. (3) Moreover, 1 in 7 children and adolescents have at least one treatable mental health disorder. (4) There is a critical link between mental health and substance use disorders. According to the Substance Abuse and Mental Health Services Administration, 1 in 4 adults with severe mental illness had a substance use disorder in 2017. (5) Moreover, children who have had a major depressive episode are more than twice as likely to use illicit drugs. (6) In 2017, approximately 19.7 million people aged 12 years or older had a substance use disorder related to their use of alcohol or illicit drugs in the past year. (7) Despite this overwhelming need, access to behavioral health services remains among the most pressing health care challenges in our country. (8) An estimated 56 percent of Americans with a mental health disorder did not receive treatment in 2017. (9) Similarly, half of children and adolescents did not receive treatment for their mental health disorder in 2016. (10) Further complicating access to care, as demand for behavioral health services increases in communities across the United States, the number of psychiatrists available to treat them continues to decline. (11) The population of practicing psychiatrists declined by more than 10 percent between the period of 2003 through 2013, while the population of primary care physicians and neurologists grew during the same period. (12) Technology has evolved to connect individuals to health care services in new ways, including via telehealth. (13) Moreover, studies show that video visits are an effective strategy to provide mental health treatment to children and, in fact, may be preferable in some cases. (14) During the 115th Congress, Congress recognized the potential of telehealth to ensure that those in urgent need of substance use disorder treatment receive the care they require. (15) As passed and signed into law, sections 2001 and 1009 of the SUPPORT for Patients and Communities Act ( Public Law 115–271 ) expands the use of telehealth services for the treatment of opioid use disorder and other substance use disorders. (16) It is widely recognized that there is a close relationship between mental health and substance use disorders. 302. Medicare treatment of behavioral health services furnished through telehealth Section 1834(m) of the Social Security Act ( 42 U.S.C. 1395m(m) ), as amended by title II, is further amended— (1) in paragraph (4)(C)— (A) in clause (i), by striking and (7) and inserting (7), and (10) ; and (B) in clause (ii)(X)— (i) by striking or telehealth services and inserting , telehealth services ; and (ii) by inserting , or telehealth services described in paragraph (10) before the period at the end; and (2) by adding at the end the following new paragraph: (10) Treatment of behavioral health services furnished through telehealth The geographic requirements described in paragraph (4)(C)(i) shall not apply with respect to telehealth services that are behavioral health services furnished on or after July 1, 2020, to eligible telehealth individuals, including initial patient evaluations, follow-up medical management, and other behavioral health services, as determined by the Secretary, at an originating site described in paragraph (4)(C)(ii) (other than an originating site described in subclause (IX) of such paragraph). . 303. Medicaid mental and behavioral health treatment through telehealth Section 1009 of the SUPPORT for Patients and Communities Act ( Public Law 115–271 ) is amended— (1) in subsection (b)— (A) in the header, by striking treatment for substance use disorders and inserting treatment for substance use disorders and mental health disorders and behavioral health disorders ; (B) in the matter preceding paragraph (1), by striking Not later than 1 year after the date of enactment of this Act, the Secretary and inserting The Secretary ; (C) in paragraph (1)— (i) by striking treatment for substance use disorders and inserting treatment for substance use disorders and mental health disorders and behavioral health disorders ; and (ii) by inserting psychotherapy, after counseling, ; (D) in paragraph (2), by inserting or mental health disorders and behavioral health disorders after substance use disorders ; (E) in paragraph (3), by inserting and mental health disorders and behavioral health disorders after substance use disorders ; and (F) by adding at the end, below and after paragraph (3), the following flush left text: The Secretary shall issue the guidance under this subsection not later than 1 year after the date of the enactment of this Act, with respect to the matters described in the previous provisions of this subsection relating to substance use disorders, and not later than 2 years after the date of the enactment of this Act, with respect to the matters described in such previous provisions relating to mental health disorders and behavioral health disorders. ; (2) in subsection (c)— (A) in the header, by striking treatment for substance use disorders and inserting treatment for substance use disorders and mental health disorders and behavioral health disorders ; (B) in paragraph (1), by striking treatment for substance use disorders and inserting treatment for substance use disorders and mental health disorders and behavioral health disorders each place it appears; and (C) in paragraph (2)— (i) by inserting with respect to substance use disorders, after paragraph (1), ; and (ii) by adding at the end the following new sentence: Not later than 2 years after the date of enactment of this Act, the Comptroller General shall submit to Congress a report containing the results of the evaluation conducted under paragraph (1), with respect to mental health disorders and behavioral health disorders, together with recommendations for such legislation and administrative action as the Comptroller General determines appropriate. ; and (3) in subsection (d)(1)— (A) in the matter preceding subparagraph (A), by inserting and mental health disorders and behavioral health disorders after substance use disorders ; (B) in subparagraph (A), by inserting , and mental health disorders and behavioral health disorders after opioid use disorder ; and (C) in subparagraph (B), by inserting and mental health disorders and behavioral health disorders after substance use disorders . 304. Effective date The amendments made by this title shall take effect as if included in the enactment of the SUPPORT for Patients and Communities Act. IV Helping Ensure Access to Local TeleHealth 401. Providing for permanent cost-related payments for telehealth services furnished by Federally qualified health centers and rural health clinics under the Medicare program and permanently removing originating site facility and location requirements for distant site telehealth services furnished by such centers and such clinics (a) Permanent telehealth payments Section 1834(m)(8) of the Social Security Act ( 42 U.S.C. 1395m(m)(8) ) is amended— (1) in the header, by striking during emergency period ; (2) in subparagraph (A), in the matter preceding clause (i), by striking During the emergency period described in section 1135(g)(1)(B) and inserting With respect to telehealth services furnished on or after the date of the beginning of the emergency period described in section 1135(g)(1)(B) ; and (3) by striking subparagraph (B) and inserting the following new subparagraph: (B) Payment (i) In general A telehealth service furnished by a rural health clinic or a Federally qualified health center serving as a distant site to an individual 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 rural health clinic service or Federally qualified health center service (as applicable) under section 1833(a)(3) or under the prospective payment system established under section 1834(o), 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. . (b) Elimination of originating site requirements for telehealth services furnished by FQHCs or RHCs (1) In general Section 1834(m) of the Social Security Act ( 42 U.S.C. 1395m(m) ), as amended by subsection (a) and titles II and III, is further amended— (A) in paragraph (4)(C)(i), by striking (7), and (10) and inserting (7), (8), and (10) ; and (B) by adding at the end the following new subparagraph: (C) Nonapplication of originating site requirements The geographic and site requirements described in paragraph (4)(C) shall not apply with respect to telehealth services furnished by a Federally qualified health center or a rural health clinic serving as a distant site. . (2) Special payment rule for originating sites with respect to telehealth services furnished by an FQHC or RHC Section 1834(m)(2)(B) of the Social Security Act ( 42 U.S.C. 1395m(m)(2)(B) ) is amended— (A) in clause (i), by striking clause (ii) and inserting clauses (ii) and (iii) ; and (B) by adding at the end the following new clause: (iii) Special rule for telehealth services furnished by FQHCs and RHCs No facility fee shall be paid under this subparagraph to an originating site with respect to telehealth services furnished by a Federally qualified health center or rural health clinic serving as a distant site unless such originating site is a site described in any of subclauses (I) through (IX) of paragraph (4)(C)(ii). . (c) Treatment of FQHC and RHC telehealth services as a visit The Secretary of Health and Human Services shall revise section 405.2463 of title 42, Code of Federal Regulations (or a successor regulation) to provide that, in the case of a Federally qualified health center or a rural health clinic serving as a distant site furnishing telehealth services to an individual in accordance with section 1834(m) of the Social Security Act ( 42 U.S.C. 1395m(m) ), such services so furnished are considered to constitute a visit to such center or such clinic (as applicable) by such individual. V Telehealth Across State Lines 501. National telehealth program Subpart I of part D of title III of the Public Health Service Act ( 42 U.S.C. 254b et seq.) is amended by adding at the end the following: 330N. National telehealth program (a) Uniform national best practices (1) In general The Secretary shall, in consultation with a range of stakeholders including the entities listed in paragraph (3), issue guidance on uniform best practices for the provision of telehealth across State lines. (2) Objective The objective of the best practices issued under paragraph (1) shall be to, not later than 5 years after the date of enactment of this section, provide high-quality telehealth in rural areas across the United States. (3) Consultation The entities listed in this paragraph include— (A) technology experts; (B) data security experts; (C) primary care providers; (D) specialist providers; (E) mental health providers; (F) academic medical centers; (G) Federally qualified health centers, as defined in section 1861(aa) of the Social Security Act; (H) State, local, or tribal health departments; (I) critical access hospitals; (J) any Federal agency with expertise in the provision of telecommunications or telehealth; and (K) consumers of telehealth. (4) Reports The Secretary shall, not less than once every year beginning 1 year after the date of enactment of this section and ending on the date on which the guidance under paragraph (1) is issued, report to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives on the progress of such guidance. (b) Grant program (1) In general The Secretary shall for each of fiscal years 2020 through 2024 award grants to eligible entities described in paragraph (2) for the expansion of telehealth programs to rural areas. (2) Eligible entity To be eligible to receive a grant under this subsection, an entity shall— (A) demonstrate that it is operating, on the date on which the entity submits an application under subparagraph (B), an effective telehealth program (as determined in accordance with criteria established by the Secretary); and (B) submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may reasonably require, including a plan to expand the telehealth program operated by the entity to rural areas. (3) Study Not later than 3 years after the date of enactment of this section, the Secretary shall— (A) complete a study on the grant program under this subsection, including the successes and challenges of the program, lessons the Secretary has learned with respect to the program, and best practices for telehealth programs; and (B) submit a report on such study to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives. (4) Authorization of appropriations There is authorized to be appropriated to carry out this subsection, $20,000,000 for each of fiscal years 2020 through 2024. (c) Definition of rural area In this section, the term rural area has the meaning given the term in section 330J(e). . 502. Center for Medicare and Medicaid Innovation (CMMI) model to incentivize the adoption of telehealth in order to increase access to care in rural areas Section 1115A(b)(2)(B) of the Social Security Act ( 42 U.S.C. 1395a(b)(2)(B) ) is amended by adding at the end the following new clause: (xxviii) Providing incentives under title XVIII to encourage the adoption of telehealth in order to increase access to care in rural areas. . VI Enhancing Preparedness through Telehealth 601. Telehealth enhancements for emergency response Subsection (e) of section 319D of the Public Health Service Act ( 42 U.S.C. 247d–4 ) is amended to read as follows: (e) Telehealth enhancements for emergency response (1) Evaluation The Secretary, in consultation with the Federal Communications Commission and other relevant Federal agencies, shall, every 5 years— (A) conduct an inventory of telehealth initiatives in existence on the date of enactment of the Enhancing Preparedness through Telehealth Act , including the— (i) specific location of networks and health information technology infrastructure that support such initiatives; (ii) medical, technological, and communications capabilities of such initiatives; (iii) functionality of such initiatives; and (iv) capacity and ability of such initiatives to handle increased volume during the response to a public health emergency; (B) identify methods to expand and interconnect the State and regional health information networks funded by the Secretary, the State and regional broadband networks funded by the Federal Communications Commission, including such networks supported by the rural health care support mechanism pilot program, and other telehealth networks; (C) evaluate ways to prepare for, monitor, respond rapidly to, or manage the events of, a public health emergency through the enhanced use of telehealth technologies, including— (i) mechanisms for payment or reimbursement for use of such technologies and personnel during public health emergencies; (ii) the use of telehealth technologies and services by health care providers in recent public health emergencies; (iii) ways in which States used telehealth technologies and services in State responses to public health emergencies; and (iv) infrastructure and resource needs to ensure providers have the necessary tools, training, and technical assistance to provide telehealth services; (D) identify methods for reducing legal barriers that deter health care professionals from providing telehealth services, such as by utilizing State emergency health care professional credentialing verification systems, encouraging States to establish and implement mechanisms to improve interstate medical licensure cooperation, facilitating the exchange of information among States regarding investigations and adverse actions, and encouraging States to waive the application of licensing requirements during a public health emergency; (E) evaluate ways to integrate the practice of telehealth within the National Disaster Medical System or any recent actions taken related to such integration; (F) promote greater coordination among existing Federal interagency telehealth and health information technology initiatives; and (G) make recommendations related to updates on the use of telehealth in public health emergencies in Federal and State public health preparedness plans and any actions taken to implement such recommendations. (2) Report (A) In general (i) Initial report Not later than 1 year after the date of enactment of the Enhancing Preparedness through Telehealth Act , the Secretary shall prepare and submit a report to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Energy and Commerce of the House of Representatives regarding the findings and recommendations pursuant to paragraph (1). (ii) Subsequent reports The Secretary shall submit updated reports described in clause (i) to the committees described in such clause not later than January 1, 2023, and every 5 years thereafter. (B) Considerations In preparing the reports under subparagraph (A), the Secretary shall take into consideration potential barriers to the adoption of telehealth by patients and providers during a public health emergency, including— (i) provider reimbursement; (ii) insurance coverage; (iii) provider licensure; (iv) accessibility of telehealth and remote technologies; and (v) concerns around violating relevant privacy, security, and patient safety regulations. . VII Knowing the Efficiency and Efficacy of Permanent Telehealth Options 701. Findings Congress finds the following: (1) On January 21, 2020, the United States confirmed the Nation’s first case of the 2019 novel coronavirus (which presents as the disease COVID–19). (2) On January 31, 2020, the Secretary of Health and Human Services (in this title referred to as the Secretary ) declared a public health emergency in response to COVID–19. (3) By March, the disease reached the pandemic level according to the World Health Organization, and the President proclaimed the COVID–19 outbreak in the United States to constitute a national emergency. (4) This emergency declaration authorizes the Secretary to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the COVID–19 outbreak . (5) Under this authority, the Secretary, and the Administrator of the Centers for Medicare & Medicaid Services (in this title referred to as the Administrator ) acting under the Secretary’s authority, issued numerous rules, regulations, and waivers enabling the expansion of telehealth services during the public health emergency. (6) Telehealth services play a critical role in enhancing access to care for patients while simultaneously reducing the risk of exposure to the co­ro­na­vi­rus for both patients and providers. (7) The Administrator expanded access to telehealth services under the public health emergency to all Medicare beneficiaries (including clinician-provided services to new and established patients). (8) On April 23, 2020, the Administrator released a telehealth toolkit to assist States in expanding the use of telehealth through Medicaid and CHIP. (9) Expanded telehealth options are valuable for all Americans during this public health crisis, but especially for high-risk patients and rural Americans who already have difficulty accessing care. 702. Studies and reports on the expansion of access to telehealth services during the COVID–19 emergency (a) HHS (1) In general Not later than 180 days after the date of the enactment of this Act, the Secretary, in consultation with the Administrator, shall conduct a study and submit to Congress a report on actions taken by the Secretary during the emergency period described in section 1135(g)(1)(B) of the Social Security Act ( 42 U.S.C. 1320b–5(g)(1)(B) ) to expand access to telehealth services under the Medicare program, the Medicaid program, and the Children’s Health Insurance program. Such report shall include the following: (A) A comprehensive list of telehealth services available under the programs described in paragraph (1) and an explanation of all actions undertaken by the Secretary during the emergency period described in such paragraph to expand access to such services. (B) A comprehensive list of types of providers that may be reimbursed for such services furnished under such programs during such period, including a list of services which may only be reimbursed under such programs during such period if furnished by such providers in-person. (C) A quantitative analysis of the use of such telehealth services under such programs during such period, including data points on use by rural, minority, low-income, and elderly populations. (D) A quantitative analysis of the use of such services under such programs during such period for mental and behavioral health treatments. (E) An analysis of the public health impacts of the actions described in subparagraph (A). (2) Publication of report Not later than 180 days after the date of the enactment of this Act, the Secretary shall publish on the public website of the Department of Health and Human Services the report described in paragraph (1). (b) GAO (1) In general Not later than 210 days after the date of enactment of this Act, the Comptroller General of the United States shall conduct a study and submit to Congress a report on— (A) the efficiency, management, and success and failures of the expansion of access to telehealth services under the Medicare, Medicaid, and Children’s Health Insurance programs during the emergency period described in subsection (a)(1); and (B) any risk in increased fraudulent activity, and types of fraudulent activity, associated with such expansion. (2) Recommendations The report sub­mit­ted under paragraph (1) shall include rec­om­men­da­tions on— (A) potential improvements to telehealth services, and expansions of such services, under the programs described in paragraph (1)(A); and (B) ways to address any fraudulent activity described in paragraph (1)(B). VIII Telemedicine Everywhere Lifting Everyone’s Healthcare Experience And Long Term Health HSA 801. Permanent exemption for telehealth services (a) In general Subparagraph (E) of section 223(c)(2) of the Internal Revenue Code of 1986 is amended by striking In the case of plan years beginning on or before December 31, 2021, a plan and inserting A plan . (b) Conforming amendment Clause (ii) of section 223(c)(1)(B) of the Internal Revenue Code of 1986 is amended by striking (in the case of plan years beginning on or before December 31, 2021) . (c) Effective date The amendments made by this section shall apply to plan years beginning after December 31, 2021. IX Telehealth Response for E-prescribing Addiction Therapy Services 901. Telehealth for substance use disorder treatment (a) Substance use disorder services furnished through telehealth under Medicare Section 1834(m)(7) of the Social Security Act ( 42 U.S.C. 1395m(m)(7) ) is amended by adding at the end the following: With respect to telehealth services described in the preceding sentence that are furnished on or after January 1, 2020, nothing shall preclude the furnishing of such services through audio or telephone only technologies in the case where a physician or practitioner has already conducted an in-person medical evaluation or a telehealth evaluation that utilizes both audio and visual capabilities with the eligible telehealth individual. . (b) Controlled substances dispensed 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) for purposes of prescribing a controlled substance in schedule III or IV, 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. .