Source: Center for Connected Health Policy
State COVID-19 Flexibilities Slowly Subsiding
As part of CCHP’s Telehealth Policy Finder, we track COVID flexibilities by state for eight topic areas, including Medicaid reimbursement (site, provider type, service and modality expansions), COVID specific requirements for private payer telehealth coverage and COVID-related flexibilities related to prescribing, consent and cross-state licensing requirements. In recent weeks, CCHP has noted that many state-based waivers and flexibilities are slowly beginning to subside. An example of this is in Ohio. There, the Medical Board recently voted to resume enforcing a regulation that requires a physician to have an in-person exam prior to prescribing a controlled substance starting December 31, 2021. The policy is confirmed in a recently updated state Medical Boards FAQs document. Another example is in California, where the Governor has extended a previous COVID related executive order to facilitate telehealth services, but rescinds a section of the executive order suspending a requirement for providers to obtain verbal or written consent before the use of telehealth. While these states are reverting back to previously existing policies, some states have passed expanded telehealth policies that are either permanent or have sunset dates a few years down the line. These states are often allowing their COVID temporary policies to expire with the knowledge of the permanent (or multi-year) policy now in place. An example includes Arizona rescinding their executive order related to insurance reimbursement due to passage of HB 2454 which made many of the requirements of their COVID era policy permanent. Still other states are continuing with two policies, one applicable during the public health emergency (PHE) and the other permanent, such as South Dakota Medicaid, which incorporates both permanent and temporary policies into their provider manual. To keep up to date on the status of each state’s COVID flexibilities, see the COVID section of CCHP’s policy finder
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Medicare Clarifies Interstate License Compact Pathways
In September the Centers for Medicare and Medicaid Services released a revised Medicare Learning Network (MLN) notice in order to clarify their policy for physicians and non-physician practitioners who get licenses through one of the various interstate licensing compacts and wish to bill Medicare Administrative Contracts (MACs) for services they provide. CMS differentiates between the Interstate Medical Licensure Compact (IMLC), which requires physicians to go through a separate licensing process (though expedited) for each participating state, and some other non-physician practitioner (NPP) compacts that allow a provider to work in a compact member state, other than their home state, without going through the typical licensing process. CMS states that for physicians and NPPS, they will treat licenses through the compacts as valid full licenses for purposes of meeting federal license requirements. It instructs MACs to re-open any previously denied enrollment applications that resulted from a license compact issue. For more information, read the full MLN notice.
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September Policy Developments in CCHP’s Telehealth Policy Finder and Policy Trends Maps
CCHP’s Policy Finder look-up tool and Policy Trend Maps were again updated in September based on the latest information from our ongoing state telehealth policy tracking. The latest states to be updated included Arizona, Massachusetts, Kentucky, Minnesota, Michigan, South Dakota, Texas, Wyoming, Wisconsin, Washington, and Virginia.
One of the most significant areas of policy change CCHP noted for this grouping of states were tightening of professional requirements around the use of telehealth by providers. For example, Michigan passed new consent requirements for podiatric medicine and surgery, social work, athletic trainers, massage therapists, acupuncturists and veterinary medicine. Texas is another state that added practice standards (including a consent requirement and prescribing rules) for teledentistry specifically. West Virginia adopted emergency telehealth practice standard regulations to implement a previous law that passed (WV Code 30-1-26(b)) for five professions, including dentistry, nursing, osteopathic medicine, social work and medicine. The regulations require an in person visit every 12 months. They also have consent and explicit prescribing requirements. The regulations will sunset on August 1, 2027.
Most of the other state updates revolved around Medicaid, licensure compacts and professional regulation. Some examples include:
- Minnesota – Added audio-only coverage requirement for Medicaid and private payers through June 30, 2023 along with a study on the modality. Minnesota Medicaid also made permanent an allowance for schools enrolled in the Individualized Education Program to provide store and forward telemedicine when a child is distance learning at home for physical therapy, occupational therapy and speech language therapy services, and added a new telemonitoring section to their provider manual.
- Michigan – Michigan Medicaid issued a new bulletin in August allowing for reimbursement of asynchronous telemedicine services, including store and forward, interprofessional telephone/internet/electronic health record consultations and remote patient monitoring services under certain circumstances.
- Washington – Added that there is no prohibition against the consultation through telemedicine by a practitioner licensed by another state or territory in which he or she resides with a practitioner licensed in WA who has responsibility for the diagnosis and treatment of the patient within WA.
- South Dakota- South Dakota Medicaid discontinued their coverage of telephonic and audio-only services that were being covered on a temporary basis during the emergency. They also removed their requirement that the distant site not be located in the same community as the originating site.
- Kentucky – Added a new ‘telehealth glossary’ to provide standard definitions for all health care providers who deliver services via telehealth. The definition incorporates asynchronous store-and-forward telehealth, remote patient monitoring, audio-only telecommunications systems and clinical text chat technology into the definition of telehealth.
- Texas – New law requires reimbursement for teledentistry by Medicaid and private payers. Texas also passed a second law requiring Medicaid cover certain types of services (such as preventive health and wellness services and case management) when delivered through telemedicine medical services, telehealth services or other telecommunications or information technology. Finally, Medicaid is required to develop and implement a system for behavioral health services that will provide services to individuals through an audio-only platform.
- West Virginia – New regulations allow for an out-of-state practitioner to practice in the state as an interstate telehealth practitioner as long as they go through a registration process.
Given the nuanced and varied approaches states are taking with their telehealth policies, please reference CCHP’s telehealth Policy Finder to link to additional details and access each states’ policies in their entirely.
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Senators Issue Request for Information on Strategies to Improve Mental Health, Including Telehealth Solutions
Senators Ron Wyden (D-OR) and Mike Crapo (R-ID), chairman and ranking member of the Senate Finance Committee respectively, have teamed up in the issuance of a Request for Information (RFI) to better understand strategies that can help improve mental health and substance use disorder treatment. Evidence-based solutions and ideas are sought in the areas of (1) strengthening the workforce; (2) increasing integration, coordination and access to care; (3) ensuring parity; (4) expanding telehealth; and (5) improving access for children and young people. The Senators list specific questions under each category. Questions related specifically to telehealth focus on the quality of care provided via telehealth, policy strategies that can be used to facilitate telehealth without exacerbating disparities, and lessons learned from the expanded use of telehealth during the COVID pandemic. They ask for comments to be submitted to [email protected] by November 1, 2021. For more information, read the full RFI.
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RemoteICU Lawsuit Takes Aim at Medicare Overseas Provider Ban
Earlier this year, CCHP covered a federal lawsuit filed by telemedicine company RemoteICU (RICU) against the Centers for Medicare and Medicaid Services (CMS), alleging that the CMS restriction against reimbursing overseas telehealth providers violates federal telehealth waivers that mandate Medicare pay for critical-care services regardless of whether the provider and patient are in different locations. At the time, RICU cited an intensivist shortage and the potential for life and death situations if their employed overseas physicians can’t deliver critical care in hospitals. While CMS does reimburse for critical-care services, they maintain that still doesn’t allow for Medicare coverage of services by overseas telehealth providers, even if they are licensed somewhere in the country. As an update on the case, in August, the district court granted CMS’ motion to dismiss the lawsuit, stating that RICU failed to channel its reimbursement request through Medicare’s mandatory administrative claims process. The court goes on to state that RICU’s motion for a preliminary injunction is dismissed because of lack of jurisdiction. Healthcare IT News reports in an article on the matter, that in September RICU filed an appeal in response, and motion for expedited consideration. CCHP has not been able to locate the appeal document. Stay tuned for updates on the case.
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Yes – Health Apps and Connected Devices must Notify Consumers when there is a Breach
The Federal Trade Commission (FTC) released a policy statement in September affirming that health apps and connected devices that collect health information must comply with the Health Breach Notification Rule and notify consumers and others when there is a health data breach. The rule seeks to provide data security for consumers from companies not covered by the Health Insurance Portability and Accountability Act (HIPAA). It would apply to any company that is able to draw data from multiple sources, for example an app that collects health information from a consumer and also draws information through a synched fitness tracker. This type of information can be sensitive and companies will now be subject to monetary penalties if they violate the rule. The statement emphasizes that a breach isn’t limited to cybersecurity incidents, but could also result from unauthorized access. For more information, read the FTC statement in its entirety as well as their press release on the topic.
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Utilization of Patient Portals is Up, even Pre-Pandemic, ONC Survey Finds
Last month the Office of the National Coordinator (ONC) for Health IT released a data brief focused on individual’s access to patient portals and use of health apps. The Health Information National Trends Survey (HINTS), which collects data on the American public’s knowledge, attitudes and use of health-related information, was the primary data source for the report. Surveys were conducted between January and April 2020, and thus the findings largely represent pre-pandemic insights. Some of the findings highlighted in the report include:
- Six in ten individuals were offered a patient portal in 2020 and 40% accessed their record at least once.
- Four in ten accessed the patient portal through a health app in 2020.
- Encouragement to use the health app by their providers plays a significant role in determining if individuals will actually do so.
- A third of individuals have downloaded their medical record using a patient portal in 2020. This number has nearly doubled since 2017.
The growth of patient portals in many ways has grown alongside telehealth, as many patient portals integrate telehealth tools within their platforms. Although this particular data brief did not address telehealth directly, it did find that six in ten patient portal users exchanged secure messages with their health care providers in 2020, a practice that is sometimes included in policy definitions of telehealth. To learn more about the findings in the ONC data brief, read their Overview Article, or the brief in its entirety.
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Physician Fee Schedule Comments
The comment period for the proposed 2022 Medicare Physician Fee Schedule closed on September 13, 2021. The proposed fee schedule offered the possibility of major changes to permanent Medicare reimbursement policy for telehealth. Mainly, the addition of audio-only for the delivery of mental health services in limited circumstances and a new definition of a “mental health visit” to allow federally qualified health centers (FQHCs) and rural health centers (RHCs) to deliver mental health services via “interactive, real-time telecommunications technology” including the audio-only modality. The services CMS placed into their Category 3 in last year’s PFS are also now proposed to remain available until the end of 2023. See CCHP’s factsheet for more details and a full summary of proposed policy changes.
Over 35,000 comments were received in response to the proposal, with 74% of those comments addressing the telehealth proposals. CCHP was of course among the commenters, along with a plethora of other entities, such as hospitals, physician groups, individuals and advocacy organizations. One letter in particular stands out because it was written by 21 organizations, including the American Psychiatry Association, National Association of Rural Health and a variety of other organizations and health systems mutually interested in ensuring FQHCs, RHCs and CAHs are able to continue delivering behavioral health services to rural communities even once the COVID emergency ends. It asks CMS to leverage telehealth to meet the increased needs of the safety net. Other organizations, such as the American Medical Association had more concrete requests for CMS in their letter, including allowing all the codes reimbursed during the COVID-19 pandemic to continue until 2023, including telephone evaluation and management services (99441-99443). It is important to note that some telehealth restrictions in permanent telehealth policy (such as the geographic and originating site restrictions for non-mental health services) are in federal law, and CMS is not able to alter the policy without passage of a new law that would give them more flexibility.
To access all the comments, search the Regulations.gov database. Additional items and details about the CY 2022 PFS can be found in CCHP’s fact sheet, explainer video, and slide deck. CMS typically finalizes their fee schedule in late November or early December.
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FEDERAL LEGISLATION
Protecting Rural Telehealth Access Act
HR 5425 (McKinley R-WV) – Eliminates the geographic restriction for telehealth Medicare reimbursement and allows the home to be an eligible originating site. The bill would also add certain flexibilities for critical access hospitals, including allowing any qualified provider to deliver a behavioral health service and any other outpatient critical access hospital service to be delivered to an eligible telehealth individual. See bill language for definition of a qualified provider. The payment amount must be equal to 101 percent of the reasonable costs of the hospital in providing such services, unless the hospital makes an election to be paid based on alternative methodology described in statute. The bill also requires FQHCs and RHCs be reimbursed for telehealth delivered services at a payment rate determined by the Secretary. Finally, the bill clarifies that in Federal Regulation, the term ‘telecommunications system’ includes, in the case of furnishing specified telehealth services, a communications system that uses audio-only technology. See bill language for definitions of eligible telehealth services and qualified providers. (Status: 9/29/21 – Introduced)
National Defense Authorization Act for Fiscal Year 2022
HR 4350 (Rogers R-AL) – Stipulates that during a health emergency: (1) the TRICARE program may not charge a cost sharing amount for telehealth services; (2) telehealth appointments that involve audio communication are considered to be telehealth appointments; (3) Reimbursement can be made under the TRICARE program regardless of whether the provider is licensed in the state the covered beneficiary is located. This would also apply to providers overseas as long as they are licensed to practice in an equivalent capacity by their respective foreign government. (Status: 9/24/21 – Passed House)
Women’s Health Protection Act of 2021
HR 3755 (Allred D-TX) – States that a health care provider has a right to provide an abortion without limitations or requirements, including a limitation to provide abortion services via telemedicine other than a limitation generally applicable to the provision of medical services via telemedicine. (Status: 9/29/21 – Read the Second Time. Placed on Senate Legislative Calendar under General Orders.)
Temporary Responders for Immediate Aid in Grave Emergencies (TRIAGE) Act of 2021
HR 5248 (Crow R-FL) – Creates a Provider Bridge Program to streamline the process for mobilizing healthcare professionals during COVID-19 and to help connect health care professionals by means of telehealth, among other elements. (Status: 9/14/21 – Introduced and referred to House Committee on Energy and Commerce)
Making Advances in Mammography and Medical Options for Veterans Act
HR 4794 (Miller-Meeks R-IA) – Requires the Secretary of Veterans Affairs to carry out a pilot program to provide telemammography services for veterans who live in states without a Department of Veterans Affairs breast imaging services facility, or areas where access to such a facility is difficult or not feasible. The Secretary may use community-based outpatient clinics, mobile mammography, federally qualifies health centers, rural health clinics, critical access hospitals, clinics of the Indian Health Services and other sites as needed. (Status: 9/9/21 – Referred to House Subcommittee on Health)
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STATE LEGISLATION
FLORIDA
SB 312 – Removes the exclusion of audio-only telephone calls from the definition of the term ‘telehealth’ in law. Narrows the prohibition on prescribing controlled substances through telehealth to only include controlled substances listed in Schedule II in a particular statute of Florida law. Previously all controlled substances were restricted from being prescribed via telehealth with a few exceptions. (Status: 9/22/21 – Filed)
NEW HAMPSHIRE
HB 602 – Excludes audio-only telephone from the definition of telemedicine and removes coverage and reimbursement parity language from existing law. Also changes language to state that health plans shall allow for compensation of a distant site and originating site no greater than the total amount allowed for in-person services. (Status: 9/8/21 – Subcommittee work session scheduled for 10/6/21)
NEW JERSEY
- 4205 – Enters New Jersey into the Psychology Interjurisdictional Compact. (Status: 9/24/21 – Approved).
TEXAS
HB 76 – Establishes a pilot project to provide emergency medical services instruction and emergency prehospital care instruction through a telemedicine medical services or telehealth service provided by regional trauma resource centers to providers in rural area trauma facilities and emergency medical service providers in rural areas. See legislation for additional details. (Status: 9/16/21 – Filed)
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