Teladoc Health to acquire InTouch Health. Learn more.

Telehealth Legislative & Regulatory Updates

Access our exclusive monthly updates on telehealth policy at both the federal and state levels

Overview: FCC COVID-19 Telehealth Program

The Federal Communications Commission (FCC) COVID-19 Telehealth Program will provide $200 million in funding through a Congressional appropriation under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help eligible healthcare providers deliver connected care services to patients at their homes or mobile locations in response to the COVID-19 pandemic. The Commission’s goal is to select applications that target areas that have been hardest hit by COVID-19 and where the support will have the most impact on addressing the healthcare needs e.g. large underserved or low-income patient population; healthcare professional shortage areas; rural hospital closures; limited broadband access and/or internet adoption, high-risk and vulnerable patients. The FCC’s COVID-19 Telehealth Program application portal opened on April 13. Applications will be reviewed on a rolling basis until funds have been depleted or the pandemic ends.

The COVID-19 Telehealth Program is limited to nonprofit and public healthcare providers that treat patients, whether located in rural or non-rural areas or U.S. territories: (1) post-secondary educational institutions offering healthcare instruction, teaching hospitals, and medical schools; (2) community health centers or health centers providing healthcare to migrants; (3) local health departments or agencies; (4) not-for-profit hospitals; (5) rural health clinics; (6) skilled nursing facilities; or (7) consortia of healthcare providers consisting of one or more entities failing into the first seven categories.

The program will provide immediate support to eligible healthcare providers responding to the COVID-19 pandemic by funding these services and devices that are integral to patient care.

 

The COVID-19 Telehealth Program will only fund devices (e.g., pulse oximetry, blood pressure monitoring devices, etc.), that are themselves connected, and will not fund unconnected devices that patients can use at home and then manually report the results to their medical professional. Connected devices may include devices with Bluetooth or WiFi connectivity, including devices that connect to a consumer’s phone, for example.

 

Examples of eligible services and connected devices that COVID-19 Telehealth Program applicants may seek funding for include:

 

  • Telecommunications Services and Broadband Connectivity Services: Voice services, for healthcare providers or their patients.
  • Information Services: Internet connectivity services for healthcare providers or their patients; remote patient monitoring platforms and services; patient-reported outcome platforms; store and forward services, such as asynchronous transfer of patient images and data for interpretation by a physician; platforms and services to provide synchronous video consultation.
  • Connected Devices/Equipment: Tablets, smartphones, or connected devices to receive connected care services at home (e.g., broadband-enabled blood pressure monitors; pulse oximetry monitors) for patient or healthcare provider use; or telemedicine kiosks/carts for healthcare provider sites.

 

In addition, COVID-19 Telehealth Program support will be available to eligible healthcare providers for services that require monthly recurring charges, such as broadband connectivity or remote patient monitoring services, through September 30, 2020.

 

Funding will not be provided for personnel costs (including but not limited to costs for IT staff, project managers, or medical professionals), marketing costs, administrative expenses, or training costs.  These ineligible costs should not be included in the funding application.

Prior to filing an application:

 

  1. Obtain an FCC Registration Number
  2. Obtain an eligibility determination from USAC by filing FCC Form 460. Healthcare providers may submit their applications while their eligibility determinations are pending. If you have already been deemed eligible to participate in the FCC’s existing Rural Health Care (RHC) Programs, you can rely on the eligibility determination for the COVID-19 Telehealth Program.
  3. Register with the federal System for Award Management (SAM)

 

Required Information for Application:

 

  1. Names, addresses, county, and healthcare provider numbers (if available), 52 for healthcare providers seeking funding through the COVID-19 Telehealth Program application and the lead healthcare provider for applications involving multiple healthcare providers.
  2. Contact information for the individual that will be responsible for the application (telephone number, mailing address, and email address).
  3. Description of the anticipated connected care services to be provided, the conditions to be treated, and the goals and objectives. This should include a brief description of how COVID-19 has impacted your area, your patient population, and the approximate number of patients that could be treated by the healthcare provider’s connected care services during the COVID-19 pandemic. If you intend to use the COVID-19 Telehealth Program funding to treat patients without COVID-19, describe how this would free up your resources that will be used to treat COVID-19 and/or how this would otherwise prevent, prepare for, or respond to the disease by, for example, facilitating social distancing.
  4. Description of the estimated number of patients to be treated.
  5. Description of the telecommunications services, information services, or “devices necessary to enable the provision of telehealth services” requested, the total amount of funding requested, as well as the total monthly amount of funding requested for each eligible item. If requesting funding for devices, description of all types of devices for which funding is requested, how the devices are integral to patient care, and whether the devices are for patient use or for the healthcare provider’s use. As noted above, monitoring devices (e.g., pulse-ox, BP monitoring devices) will only be funded if they are themselves connected.
  6. Supporting documentation for the costs indicated in their application, such as a vendor or service provider quote, invoice, or similar information.
  7. A timeline for deployment of the proposed service(s) and a summary of the factors the applicant intends to track that can help measure the real impact supported services and devices.
  8. Certification: Applicant must comply with the Health Insurance Portability and Accountability Act (HIPAA) and other applicable privacy and reimbursement laws and regulations, and applicable medical licensing laws and regulations, as waived or modified in connection with the COVID-19 pandemic, as well as all applicable COVID-19 Telehealth Program requirements and procedures, including the requirement to retain records to demonstrate compliance with the COVID-19 Telehealth Program requirements and procedures for three years following the last date of service, subject to audit. This document retention period appropriately balances the interests of program integrity while minimizing administrative burdens on healthcare providers during this emergency. Healthcare providers that participate in the COVID-19 Telehealth Program must also comply with all applicable federal and state laws, including the False Claims Act, the Anti-Kickback Statute, and the Civil Monetary Penalties Law, as waived or modified in connection with the COVID-19 pandemic. Further, applicants will also be required to certify that they are not already receiving or expecting to receive other federal or state funding for the exact same services or devices for which they are requesting support under the COVID-19 Telehealth Program.

Applications will be reviewed on a rolling basis until funds have been depleted or the pandemic ends. Commission staff, in consultation with the FCC’s Connect2Health Task Force, will evaluate the COVID-19 Telehealth Program applications and will select participants based on each applicant’s responses to the following criteria: 

 

  • The conditions to be treated using the COVID-19 Telehealth Program funding.
  • The goals and objectives for use of the COVID-19 Telehealth Program funding.
  • The timeline for deployment of the proposed service(s) or devices funded by the COVID-19 Telehealth Program. 
  • The factors/metrics the applicant will use to help measure the impact of the services and devices funded by the COVID-19 Telehealth Program.
  • The geographic area and population served by the applicant and whether that geographic area has been under any pre-existing strain (e.g., large underserved or low-income patient population; healthcare provider shortages; rural hospital closures; limited broadband access and/or Internet adoption).
  • The healthcare providers’ targeting of funding to high-risk and vulnerable patients.

 

The Commission does not anticipate awarding more than $1 million to any single applicant.

 

After receiving the eligible services and/or devices, healthcare providers that receive funding through the program will submit invoicing forms and supporting documentation on a monthly basis to the Commission.  After the reimbursement request is approved, payment will be issued electronically to the healthcare provider. 

Special Update: COVID-19 Funding Package

In early March, Congress passed an $8.3 billion COVID-19 funding package (H.B.6074) that included a provision to allow telehealth to be more widely used for Medicare beneficiaries during the coronavirus public health emergency period. The telehealth provision provides the HHS Secretary with the authority to waive existing Medicare telehealth originating site restrictions that will allow Medicare providers to deliver telehealth services regardless of whether the beneficiary is in a rural community or not. In addition, the legislation allows expansion of telehealth services as follows:

  • By qualified healthcare providers to provide Medicare telehealth services to patients with whom they have a pre-existing relationship. Specifically, the legislation describes a “qualified provider” as a physician or practitioner as defined under the telehealth section for Medicare who has “…furnished to such individual an item or service for which payment was made under title XVIII during the 3-year period ending on the date such telehealth service was furnished; or is in the same practice (as determined by tax identification number) of a physician or practitioner (as so defined) who furnished such an item or service to such individual during such period…”
  • For patients to receive telehealth services from a provider in their home, thus, removing the requirement for patients to travel to a medical facility and lowering the risk of spreading the virus to others.
  • For patients to engage with providers using video or phone when “such telephone has audio and video capabilities that are used for two-way, real-time interactive communications.”
 

These new policies will take effect after HHS implements the waiver for deployment of telehealth services during the coronavirus emergency period.

 

Currently, Medicare reimburses for other synchronous and asynchronous communication technology-based services that may be provided to a patient at home. These services are not considered to be “Medicare telehealth” services and thus, are billable without geographic or setting restrictions:

  • Virtual check-in (G2012)
  • Remote evaluation of recorded video/images (G2010)
  • Online digital evaluation services through a patient portal (CPT codes 99421-99423, HCPCS codes G2061-G206, as applicable)
 

Please reference this CMS fact sheet for more details about telehealth coverage and payment related to COVID-19.

 

At the state level, only a few states currently have laws that address utilization of telehealth when an emergency is declared. Therefore, states may also be considering passing legislation to allow more expansive use of telehealth. On the commercial side, a growing number of commercial health plans are encouraging patients to use more telehealth, waiving co-pays, and expanding reimbursement for providers.

Telehealth Reimbursement Webinar

View our latest reimbursement webinar:

Getting Paid for Telehealth Today and What to Expect in 2020

Join InTouch Health’s Jordana Bernard, Director, Policy and Public Affairs and Tim Wright, Chief Strategy Officer as they help you make sense of current and forthcoming reimbursement changes and what they will mean for your organization in the year to come.

April 2020

Lawmakers and regulators continue to advance remedies to longstanding barriers to accelerate the role telehealth can play during the coronavirus pandemic. Last week, Congress introduced the Emergency COVID-19 Telehealth Response Act to allow Medicare reimbursement for clinical social workers, occupational therapists, audiologists, speech pathologists and physical therapists and CMS issued new guidelines for reimbursement of telehealth services provided by practitioners working at FQHCs and RHCs during the crisis. Here are other policy changes now being considered by Congress and the Administration that will further boost payment rates for providers: (1) allowances for coverage of certain telehealth services using only the telephone (audio), (2) increasing payment rates for new telephone billing codes, and (3) adding additional types of providers who can be reimbursed for telehealth.

 

Expanded reimbursement for telehealth during the crisis has been instrumental in driving adoption by both providers and patients. With expectations that telehealth visits are becoming the “new normal,” it is unlikely that policy enhancements will snap back in a post-coronavirus world. In fact, CMS Administrator Seema Verma said, “…. the genie’s out of the bottle on this one…I think it’s fair to say that the advent of telehealth has been just completely accelerated, that it’s taken this crisis to push us to a new frontier, but there’s absolutely no going back.” (WSJ April 26, 2020) To secure permanent coverage and reimbursement changes for telehealth, governmental concerns regarding potential over-utilization and fraud and abuse will need to be addressed. See article here.

The Office of the National Coordinator for Health IT (ONC) and CMS, in conjunction with the HHS Office of Inspector General (OIG) announced a policy of enforcement discretion to allow compliance flexibilities regarding the implementation of the interoperability final rules announced on March 9 in response to the COVID-19 public health emergency. ONC will exercise enforcement discretion for three months, effectively providing hospitals an additional six months to implement the new requirements.

FDA issued new guidance that relaxes pre-market certification on certain Class 2 prescription-only connected health tools, such as apps and devices that are designed to treat depression, anxiety, insomnia, and other conditions. The guidance also clarifies the agency’s rules on low-risk devices aimed at health and wellness.

 

The guidelines do not address telemental health devices that replace psychiatric care; however, they are intended to provide more mental health resources to patients during COVID-19 when providers are inundated. In addition, the guidance does not do away with all the original standards. The FDA will still be using current verification, validation, and hazard analysis. See article here.

CMS released a toolkit to accelerate the adoption of telehealth coverage policies in state Medicaid and Children’s Health Insurance Programs (CHIP) during the coronavirus pandemic. State and federal governments jointly administer Medicaid and CHIP programs that provide health coverage for over 71 million Americans, including 35 million children. CMS also launched a new telehealth website targeted to physicians and patients using telehealth during the crisis at Telehealth.HHS.gov.

FCC Funding Opportunities

To date, the $200 million FCC COVID-19 Telehealth Program has awarded a total of $9.5 million in funding to help support 17 healthcare providers to deliver telehealth services during the coronavirus pandemic. The FCC will continue to review and approve applications on a rolling basis. Below is a listing of awardees through April 23:

  • Grady Memorial Hospital in Atlanta, Georgia, $727,747
  • Hudson River HealthCare, Inc., in Peekskill, New York, $753,367
  • Mount Sinai Health System, in New York City, New York, $312,500
  • Neighborhood Health Care, Inc., in Cleveland, Ohio, $244,282
  • Ochsner Clinic Foundation, in New Orleans, Louisiana, $1,000,000
  • UPMC Children’s Hospital of Pittsburgh, in Pittsburgh, Pennsylvania, $192,500
  • Banyan Community Health Center, Inc., in Coral Gables, Florida, $958,270
  • Health Partners of Western Ohio, based in Lima, Ohio, $737,098
  • NYU Langone Health, in New York, New York, $983,772
  • St. John’s Well Child and Family Center, in Los Angeles, California, $382,331
  • The University of Michigan Hospital, in Ann Arbor, Michigan, $649,000
  • Anne Arundel Medical Center, Inc., in Annapolis, Maryland, $664,606
  • Christiana Care Health Services, in Newark, Delaware, $714,322
  • Garfield Health Center, in Monterey Park, California, $130,217
  • HIV/AIDS Alliance for Region 2, Open Health Care Clinic, in Baton Rouge, Louisiana, $116,049
  • NYU Grossman School of Medicine, in New York, New York, $772,687
  • White Plains Hospital Medical Center, in White Plains, New York, $165,832

 

The FCC’s Connected Care Pilot Program ($100 million) funding opportunity is not yet open for submissions. Click here for more information about this 3-year program. Other open federal grant opportunities that include funding for telehealth are listed below:

 

USDA Distance Learning and Telemedicine (DLT)

  • $25 million+, awards up to $1 million
  • Due by July 13, 2020
  • Targets applicants that provide education or healthcare through telecommunications, including: state and local governmental entities, federally-recognized tribes, non-profits, for-profit businesses, consortia of eligible entities
  • Funds may be used for acquisition of eligible capital assets such as: broadband transmission facilities, audio, video and interactive video equipment, terminal and data terminal equipment, computer hardware, network components and software, inside wiring and similar infrastructure that further DLT services, acquisition of instructional programming that is a capital asset, acquisition of technical assistance and instruction for using eligible equipment

 

HRSA Telehealth Network Grant Program (TNGP)

  • $8.7 million, awards up to $300K
  • Due by June 15, 2020
  • Targets tele-emergency services with an emphasis on telestroke, telebehavioral health, and tele-emergency medical services (tele-EMS) by enhancing telehealth networks to deliver 24-hour ED consultative services via telehealth to rural providers
  • Eligible applicants include rural or urban nonprofit entities that will provide direct clinical services to rural areas through a telehealth network. Each entity participating in the networks may be a nonprofit or for-profit entity

 

Rural Tribal COVID-19 Response Program

  • $15 million, awards up to $300K
  • Due by May 6, 2020
  • Targets maximum flexibility to assist tribes, tribal organizations, urban Indian health organizations, and health service providers to tribes to prevent, prepare for and respond to the coronavirus and the evolving needs in rural communities
  • Funds may include but are not limited to: establishing testing sites, purchasing test kits, implementing telehealth strategies/activities, purchasing personal protective equipment (PPE) and other supplies, and hiring and/or training health care providers and other health care personnel to provide care for COVID-19 patients
  • Eligible applicants include tribes, tribal organizations, urban Indian health organizations, and health service providers to tribes serving rural communities at risk for COVID-19

HRSA received a $150 million CARES Act appropriation for the Small Rural Hospital Improvement Program (SHIP) to assist 1,779 small rural hospitals during the public health emergency. Funding awards give rural hospitals (less than 49 beds) critical support to build up capacity for fighting COVID-19 in their communities, including using telehealth. The State Office of Rural Health (SORH) serves as the official grantee and acts as a fiscal intermediary for the eligible small rural hospitals within the state. Click here for a list of the award recipients.

AHRQ intends to publish a new funding opportunity announcement for the health system research community to support novel, high-impact studies evaluating health system and healthcare professional responsiveness to COVID-19. Funding will target research focused on evaluating topics such as innovations and challenges encountered in the rapid expansion of telemedicine in response to COVID-19, effects on quality, safety, and value of health system response to COVID-19, and the role of primary care practices and professionals during the COVID-19 epidemic.

 

AHRQ is particularly interested in understanding how digital health innovations contributed to health system and healthcare professional innovation and challenges and solutions to meet the needs of vulnerable populations including older adults, people living with multiple chronic conditions, rural communities, and uninsured and underinsured populations. AHRQ expects to invest up to $5M in FY2020 funds to support this initiative and may include more pending supplemental funding. AHRQ is working to publish the funding opportunity announcement in early May 2020 with submissions due in June 2020.

March 2020

Physician reimbursement for telehealth under Medicare (fee-for-service) prior to COVID-19 has been limited statutorily to: (1) rural areas, (2) certain medical facilities, (3) certain types of providers, (4) live audio-video, and (5) certain services provided to beneficiaries (with a few exceptions for telestroke, end-stage renal disease, and substance use disorder treatments). In March, Congress passed these three historic pieces of legislation in response to the Coronavirus pandemic that included provisions to remove longstanding restrictions on telehealth reimbursement. The legislation paved the way for providers to bring a wider range of healthcare services to Medicare beneficiaries - including care at home - to help reduce risk of exposure and community spread of the virus:

  • H.R. 6704 The Coronavirus Preparedness and Response Supplemental Appropriations Act
  • H.R. 6201 Families First Coronavirus Response Act
  • S. 3548 The Coronavirus Aid, Relief, and Economic Security Act (CARES)

The CARES Act – a $2 trillion relief package - was signed into law on March 27. This legislation includes significant funding for telehealth services and grants across various federal agencies including HHS, NIH, FCC, VA and the telehealth resource centers. Other significant telehealth provisions in the CARES Act include:

  • HHS Secretary has given broad authority to waive ANY of the telehealth restrictions (noted above)
  • Removes the requirement for a pre-existing patient-provider relationship for reimbursement of telehealth services.
  • Removes the definition of telehealth as a live, audio-video encounter
  • Allows FQHCs and RHCs to serve as eligible distant site providers for telehealth services provided to Medicare beneficiaries.

In sum, the three new legislative Acts fundamentally change the role telehealth can play in the care and treatment of Medicare beneficiaries. The CARES Act improves and builds upon the relief for telehealth extended by the previous two COVID-19 legislative packages. Federal telehealth reimbursement changes coupled with accelerating state-level actions to expand reimbursement and remove licensure1, credentialing and other barriers are positioning telehealth to be utilized to the fullest extent possible during the Coronavirus pandemic.

 

Below is a detailed summary of the telehealth provisions included in the three federal COVID-19 legislative packages:

 

Pre-COVID Telehealth Reimbursement RulesH.R. 6704 & H.R. 6201S. 3548 (CARES Act)
Rural Areas OnlyWaived, all geographic areas qualifyN/A
Medical Facilities Originating SitesWaived, all geographic areas qualify including place of residenceN/A
Certain Types of Providers
  • No change, includes physicians, PAs, NPs, nurse midwives, clinical nurse specialists, clinical registered nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians or nutrition professionals
  • Providers may reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs
  • H.R. 6201: Technical fix removes requirement for prior payment by federal healthcare program
  • Allows HHS Secretary to expand types of providers not currently on the list who would be eligible for reimbursement (e.g. respiratory therapists, PTs, RNs, etc.)
  • Adds FQHCs and RHCs as distant site providers, including services to patients at home, Medicare will reimburse telehealth services based on payment rates similar to the national average payment rates for comparable telehealth services under the Medicare Physician Fee Schedule, also excludes costs associated with services from FQHC prospective payment system and RHC all-inclusive rate calculation
Live Video
  • No change, may use smartphone w video for telehealth
  • HHS Office of Civil Rights to exercise enforcement discretion, waive penalties for HIPAA violations
  • May use virtual check-ins, eVisits
  • Allows HHS Secretary to waive restrictions on modalities (e.g. HHS Secretary could allow audio-only telephone, store and forward, etc.)
  • Removes live audio-video modality requirement for telehealth from H.R. 6704
Certain Telehealth Services
  • No change, includes COVID-19 and non-COVID-19 services
  • Requires provider to have pre-existing relationship and prior payment from Medicare
  • Allows HHS Secretary to waive restrictions on services (e.g. could add services to the list for reimbursement)
  • Removes requirement for a pre-existing relationship from H.R. 6704
  • Removes requirement for periodic in-person visits that may be provided via telehealth for home dialysis patients
  • Allows use of telehealth to conduct face-to-face encounter prior to the recertification of eligibility for hospice care
Other Provisions
  • N/A
  • Requires HHS to issue clarifying guidance encouraging the use of telehealth and RPM for home health services
  • Allows high deductible health plans with HSAs to allow telehealth and other remote services prior to reaching deductible
  • $27 billion to Public Health and Social Services Emergency Fund Biomedical Advanced Research and Development Authority to include telehealth access and infrastructure
  • $29 million per year, 5 years for HRSA telehealth resource center grant program
  • $200 million for FCC to support healthcare providers by providing telecommunications services, information services, and devices necessary to enable provision of telehealth
  • $1.032 billion for Indian Health Service includes increased capacity for telehealth
  • $27 billion for the HHS Public Health and Social Services Emergency Fund including workforce modernization, telehealth access and infrastructure
  • $180 million for HRSA to carry out telehealth and rural health activities
  • $14.4 billion to VA to support increased medical services including via telehealth
  • $2.15 billion to VA to support information technology including telehealth

This week CMS issued an array of new rules and waivers that reimburse for a wider range of telehealth services during the COVID-19 pandemic. New regulatory flexibilities aim to boost access to telehealth in the Medicare program while helping to mitigate the spread of the virus. For the first time, CMS will now pay for telehealth visits using an audio-only telephone, 80 new services including telehospitalist and other critical care inpatient services and expanded RPM for both acute care and chronic conditions. CMS also expanded the list of providers who may be reimbursed for telehealth to include rehabilitation professionals and a few other types of practitioners. There are numerous other enhancements including new billing procedures that maximize reimbursement for providers.

 

In sum, CMS’ new efforts to remove barriers further enhances the role telehealth can play in the care and treatment of Medicare beneficiaries during the coronavirus pandemic. New rules expanding reimbursement for telehealth services and access to more virtual care services in place of in-person care ensures patients have access to both COVID-19 and non-COVID-19 healthcare services while reducing the risk of exposure by keeping patients safe at home. As states adopt licensure and other waivers similar to the federal system, expansion of telehealth will more rapidly accelerate (as of March 31, FSMB reports 46 states and DC have waived some licensure requirements).

 

Below is a summary of key telehealth policy changes outlined in the CMS final rule:

 

    1. Removes the restriction on provider reimbursement to established patients only: Expands reimbursement for services provided to both new and existing patients for telehealth services, brief check-ins, eVisits, and RPM, allowing access to virtual care for any Medicare beneficiary.
    2. Expands list of eligible telehealth services for reimbursement in Medicare (fee-for-service): Adds 80 new Medicare telehealth services including emergency department care, inpatient (e.g. telehospitalist) admission and hospital observation care, critical care (adult, pediatric and neonatal), nursing or assisted living facilities care, home care, psychological testing, rehabilitation therapy, and radiation treatment management, effective March 1. These services must still be provided via audio-video technologies.
    3. Expands list of eligible providers who can bill for telehealth and eVisits: Adds licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists services, and speech-language pathologists. FQHCs and RHCs also authorized as eligible providers under Medicare per passage of the CARES Act.
    4. Relaxes limits on how often a provider can be reimbursed for certain key telehealth services:

 

 Pre-COVID-19 Billing RulesCurrent Rules
Follow-Up Inpatient CareOnce every 3 daysDaily
Critical CareDailyNo limit
SNF CareOnce every 30 daysDaily

 

  1. Allows care via audio-only telephone for certain services: Allows reimbursement for certain evaluation and management services provided by physicians and non-physicians for new and established patients. These telephone visits are not considered by CMS to be “telehealth visits” but rather these are brief encounters paying from $9-$28 (avg).
  2. Expands reimbursement for RPM services: Allows reimbursement of RPM services for new and established patients, clarifies reimbursement for both acute care and chronic conditions including for patients with only one chronic disease.
  3. Allows the recertification process for hospice care via telehealth: Allows the hospice physician or NP to furnish the face-to-face visit by telehealth (audio-video) for the purpose of recertifying a patient for hospice services.
  4. Allows face-to-face requirements to be furnished via telehealth: For patients in SNFs, hospice, home health, inpatient rehabilitation facilities and for certain periodic visits for patients with end-stage renal disease receiving home dialysis therapy.
  5. Allows supervision via telehealth for certain services: Services requiring direct supervision (same location) by a physician or other practitioner may be provided remotely via live video.
  6. Implements new billing procedures: Providers who bill Medicare for telehealth services to now use the “95 modifier” for telehealth claims and to report the place-of-service (POS) code that would have been reported had the service been furnished in-person (e.g. hospital, office, etc.) This will allow CMS to pay for the telehealth service at the rate the service would have been paid if the service were provided in-person (e.g. facility rate vs non-facility rate). Given the potential importance of using telehealth services as a means of minimizing exposure risks for patients, practitioners, and the community at large, CMS believes this interim change will eliminate potential financial deterrents to the use of telehealth. If providers choose to maintain their current billing practices during the COVID-19 pandemic using POS (02) for telehealth, CMS will automatically pay the provider the “facility” payment rate.
  7. Licensure Clarification: Waives Medicare and Medicaid’s requirements that physicians and non-physician practitioners be licensed in the state where they are providing services, applies when the state has also waived its licensure requirements for the same type of practice (e.g. physician, non-physician). Excerpt: “CMS is temporarily waiving requirements that out-of-state practitioners be licensed in the state where they are providing services when they are licensed in another state. CMS will waive the physician or non-physician practitioner licensing requirements when the following four conditions are met: (1) must be enrolled as such in the Medicare program; (2) must possess a valid license to practice in the state which relates to his or her Medicare enrollment; (3) is furnishing services – whether in person or via telehealth – in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and, (4) is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area. In addition to the statutory limitations that apply to 1135-based licensure waivers, an 1135 waiver, when granted by CMS, does not have the effect of waiving state or local licensure requirements or any requirement specified by the state or a local government as a condition for waiving its licensure requirements. Those requirements would continue to apply unless waived by the state. Therefore, in order for the physician or non-physician practitioner to avail him- or herself of the 1135 waiver under the conditions described above, the state also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home state.”
  8. Enrollment Clarification: Allows practitioners to render telehealth services from their home without reporting their home address on their Medicare enrollment while continuing to bill from your currently enrolled location.
  9. Stark Law Clarification: Loosens restrictions when a group practice can furnish medically necessary designated health services (DHS) in a patient’s home. For example, any physician in the group may order medically necessary DHS that is furnished to a patient by a technician or nurse in the patient’s home contemporaneously with a physician service that is furnished via telehealth by the physician who ordered the DHS.
  10. EMTALA Clarification: Clarifies EMTALA requirements may be met via telehealth.

 

More detailed information on the new rules for reimbursement and billing of telehealth services will be coming soon.

 

Rural Areas Only

 

H.R. 6704 & H.R. 6201:

  • Waived, all geographic areas qualify

 

S. 3548 (CARES Act):

  • N/A
Medical Facilities Originating Sites

 

H.R. 6704 & H.R. 6201:

  • Waived, all geographic areas qualify including place of residence

 

S. 3548 (CARES Act):

  • N/A
Certain Types of Providers

 

H.R. 6704 & H.R. 6201:

  • No change, includes physicians, PAs, NPs, nurse midwives, clinical nurse specialists, clinical registered nurse anesthetists, clinical psychologists, clinical social workers, registered dietitians or nutrition professionals
  • Providers may reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs
  • H.R. 6201: Technical fix removes requirement for prior payment by federal healthcare program

 

S. 3548 (CARES Act):

  • Allows HHS Secretary to expand types of providers not currently on the list who would be eligible for reimbursement (e.g. respiratory therapists, PTs, RNs, etc.)
  • Adds FQHCs and RHCs as distant site providers, including services to patients at home, Medicare will reimburse telehealth services based on payment rates similar to the national average payment rates for comparable telehealth services under the Medicare Physician Fee Schedule, also excludes costs associated with services from FQHC prospective payment system and RHC all-inclusive rate calculation
Live Video

 

H.R. 6704 & H.R. 6201:

  • No change, may use smartphone w video for telehealth
  • HHS Office of Civil Rights to exercise enforcement discretion, waive penalties for HIPAA violations
  • May use virtual check-ins, eVisits

 

S. 3548 (CARES Act):

  • Allows HHS Secretary to waive restrictions on modalities (e.g. HHS Secretary could allow audio-only telephone, store and forward, etc.)
  • Removes live audio-video modality requirement for telehealth from H.R. 6704
Certain Telehealth Services

 

H.R. 6704 & H.R. 6201:

  • No change, includes COVID-19 and non-COVID-19 services
  • Requires provider to have pre-existing relationship and prior payment from Medicare

 

S. 3548 (CARES Act):

  • Allows HHS Secretary to waive restrictions on services (e.g. could add services to the list for reimbursement)
  • Removes requirement for a pre-existing relationship from H.R. 6704
  • Removes requirement for periodic in-person visits that may be provided via telehealth for home dialysis patients
  • Allows use of telehealth to conduct face-to-face encounter prior to the recertification of eligibility for hospice care
Other Provisions

H.R. 6704 & H.R. 6201:

  • N/A

 

S. 3548 (CARES Act):

  • Requires HHS to issue clarifying guidance encouraging the use of telehealth and RPM for home health services
  • Allows high deductible health plans with HSAs to allow telehealth and other remote services prior to reaching deductible
  • $27 billion to Public Health and Social Services Emergency Fund Biomedical Advanced Research and Development Authority to include telehealth access and infrastructure
  • $29 million per year, 5 years for HRSA telehealth resource center grant program
  • $200 million for FCC to support healthcare providers by providing telecommunications services, information services, and devices necessary to enable provision of telehealth
  • $1.032 billion for Indian Health Service includes increased capacity for telehealth
  • $27 billion for the HHS Public Health and Social Services Emergency Fund including workforce modernization, telehealth access and infrastructure
  • $180 million for HRSA to carry out telehealth and rural health activities
  • $14.4 billion to VA to support increased medical services including via telehealth
  • $2.15 billion to VA to support information technology including telehealth

This week CMS issued an array of new rules and waivers that reimburse for a wider range of telehealth services during the COVID-19 pandemic. New regulatory flexibilities aim to boost access to telehealth in the Medicare program while helping to mitigate the spread of the virus. For the first time, CMS will now pay for telehealth visits using an audio-only telephone, 80 new services including telehospitalist and other critical care inpatient services and expanded RPM for both acute care and chronic conditions. CMS also expanded the list of providers who may be reimbursed for telehealth to include rehabilitation professionals and a few other types of practitioners. There are numerous other enhancements including new billing procedures that maximize reimbursement for providers.

 

In sum, CMS’ new efforts to remove barriers further enhances the role telehealth can play in the care and treatment of Medicare beneficiaries during the coronavirus pandemic. New rules expanding reimbursement for telehealth services and access to more virtual care services in place of in-person care ensures patients have access to both COVID-19 and non-COVID-19 healthcare services while reducing the risk of exposure by keeping patients safe at home. As states adopt licensure and other waivers similar to the federal system, expansion of telehealth will more rapidly accelerate (as of March 31, FSMB reports 46 states and DC have waived some licensure requirements).

 

Below is a summary of key telehealth policy changes outlined in the CMS final rule:

 

    1. Removes the restriction on provider reimbursement to established patients only: Expands reimbursement for services provided to both new and existing patients for telehealth services, brief check-ins, eVisits, and RPM, allowing access to virtual care for any Medicare beneficiary.
    2. Expands list of eligible telehealth services for reimbursement in Medicare (fee-for-service): Adds 80 new Medicare telehealth services including emergency department care, inpatient (e.g. telehospitalist) admission and hospital observation care, critical care (adult, pediatric and neonatal), nursing or assisted living facilities care, home care, psychological testing, rehabilitation therapy, and radiation treatment management, effective March 1. These services must still be provided via audio-video technologies.
    3. Expands list of eligible providers who can bill for telehealth and eVisits: Adds licensed clinical social workers, clinical psychologists, physical therapists, occupational therapists services, and speech-language pathologists. FQHCs and RHCs also authorized as eligible providers under Medicare per passage of the CARES Act.
    4. Relaxes limits on how often a provider can be reimbursed for certain key telehealth services:

 

 Pre-COVID-19 Billing RulesCurrent Rules
Follow-Up Inpatient CareOnce every 3 daysDaily
Critical CareDailyNo limit
SNF CareOnce every 30 daysDaily

 

  1. Allows care via audio-only telephone for certain services: Allows reimbursement for certain evaluation and management services provided by physicians and non-physicians for new and established patients. These telephone visits are not considered by CMS to be “telehealth visits” but rather these are brief encounters paying from $9-$28 (avg).
  2. Expands reimbursement for RPM services: Allows reimbursement of RPM services for new and established patients, clarifies reimbursement for both acute care and chronic conditions including for patients with only one chronic disease.
  3. Allows the recertification process for hospice care via telehealth: Allows the hospice physician or NP to furnish the face-to-face visit by telehealth (audio-video) for the purpose of recertifying a patient for hospice services.
  4. Allows face-to-face requirements to be furnished via telehealth: For patients in SNFs, hospice, home health, inpatient rehabilitation facilities and for certain periodic visits for patients with end-stage renal disease receiving home dialysis therapy.
  5. Allows supervision via telehealth for certain services: Services requiring direct supervision (same location) by a physician or other practitioner may be provided remotely via live video.
  6. Implements new billing procedures: Providers who bill Medicare for telehealth services to now use the “95 modifier” for telehealth claims and to report the place-of-service (POS) code that would have been reported had the service been furnished in-person (e.g. hospital, office, etc.) This will allow CMS to pay for the telehealth service at the rate the service would have been paid if the service were provided in-person (e.g. facility rate vs non-facility rate). Given the potential importance of using telehealth services as a means of minimizing exposure risks for patients, practitioners, and the community at large, CMS believes this interim change will eliminate potential financial deterrents to the use of telehealth. If providers choose to maintain their current billing practices during the COVID-19 pandemic using POS (02) for telehealth, CMS will automatically pay the provider the “facility” payment rate.
  7. Licensure Clarification: Waives Medicare and Medicaid’s requirements that physicians and non-physician practitioners be licensed in the state where they are providing services, applies when the state has also waived its licensure requirements for the same type of practice (e.g. physician, non-physician). Excerpt: “CMS is temporarily waiving requirements that out-of-state practitioners be licensed in the state where they are providing services when they are licensed in another state. CMS will waive the physician or non-physician practitioner licensing requirements when the following four conditions are met: (1) must be enrolled as such in the Medicare program; (2) must possess a valid license to practice in the state which relates to his or her Medicare enrollment; (3) is furnishing services – whether in person or via telehealth – in a state in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity; and, (4) is not affirmatively excluded from practice in the state or any other state that is part of the 1135 emergency area. In addition to the statutory limitations that apply to 1135-based licensure waivers, an 1135 waiver, when granted by CMS, does not have the effect of waiving state or local licensure requirements or any requirement specified by the state or a local government as a condition for waiving its licensure requirements. Those requirements would continue to apply unless waived by the state. Therefore, in order for the physician or non-physician practitioner to avail him- or herself of the 1135 waiver under the conditions described above, the state also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home state.”
  8. Enrollment Clarification: Allows practitioners to render telehealth services from their home without reporting their home address on their Medicare enrollment while continuing to bill from your currently enrolled location.
  9. Stark Law Clarification: Loosens restrictions when a group practice can furnish medically necessary designated health services (DHS) in a patient’s home. For example, any physician in the group may order medically necessary DHS that is furnished to a patient by a technician or nurse in the patient’s home contemporaneously with a physician service that is furnished via telehealth by the physician who ordered the DHS.
  10. EMTALA Clarification: Clarifies EMTALA requirements may be met via telehealth.

 

More detailed information on the new rules for reimbursement and billing of telehealth services will be coming soon.

February 2020

InTouch Health will offer these three telehealth workshops on July 20 prior to the 14th Telehealth Innovation Forum:

  • 11:00 a.m. - 2:00 p.m. - Closing the Gap: Using Research to Illustrate the Value of Telehealth Today and in the Future
    • This workshop will focus on academic telemedicine research and the importance of data collection to drive policy changes.
  • 1:00 - 2:00 p.m. - Telehealth Reimbursement Primer
    • This workshop will review the basics of telehealth reimbursement for each of the main payers.
  • 2:30 - 5:00 p.m. - The Business of Telehealth: Essentials of Getting Paid in 2020
    • This workshop will dive into best practices for billing and getting paid for telehealth services across various use cases and settings.

 

Find additional details here.

The bipartisan, bicameral CONNECT for Health Act of 2019 contains 15 provisions, including potential large-scale policy changes for telehealth. During our recent meetings with lawmakers on Capitol Hill, we learned the bill sponsors are prioritizing these provisions from CONNECT to target for passage in a healthcare legislative package this May:

  • Telebehavioral Health (section 4) – Removes geographic restrictions and adds the home as an originating site for mental health services.
  • Emergency Medical Care (section 5) – Removes geographic restrictions on hospitals and SNFs for emergency medical care services.
  • FQHCs/RHCs (section 7) - Removes geographic restrictions on federally qualified health centers FQHCs) and rural health clinics (RHCs) and allows FQHCs and RHCs to furnish telehealth services as distant sites.

InTouch Health is currently developing a brief to be utilized by lawmakers, congressional budget office (CBO), CMS and others to garner support for the CONNECT Act’s emergency medical care provision. This document will include studies or reviews as background information to assist in developing a cost analysis on cost savings opportunities.

 

If passed, these provisions would enable nationwide reimbursement, similar to telestroke, and increased access to critical healthcare services for:

  • All specialist consultations provided using telehealth to any hospital ED or SNF
  • Any ED, inpatient or outpatient telebehavioral health services including services provided to the patient at home
  • All FQHCs and RHCs to serve as both the receiving site of care and provider of services for the first time

The coronavirus emergency funding package presents an opportunity to get Section 9 from the CONNECT bill into the legislative package as early as next week. If included, this provision would allow the HHS Secretary to waive restrictions on the use of telehealth for Medicare beneficiaries during a public health emergency. Removal of the rural geographic and originating site restrictions would enable nationwide provider reimbursement for telehealth visits and increase access for patients experiencing coronavirus symptoms, preserving higher acuity capacity for those in need and reducing the risk of exposure to others.

 

Call to Action: This is a critical time for advocacy to garner support for the use of telehealth for public health emergency response. Please reach out to congressional leaders now to urge them to include provision 9 from the bipartisan, bicameral CONNECT for Health Act of 2019 legislation in the COVID-19 supplemental appropriation. For any questions, please contact Jordana Bernard, Director, Policy and Public Affairs at jbernard@intouchhealth.com.

Congress recently introduced these bills addressing the use of telehealth under Medicare:

  • H.R. 5833 – would add new payment codes for psychological evaluations via telehealth of neurostimulation services for the treatment of chronic pain.
  • H.R. 5808 Save Rural Communities Act - would add “rural emergency access centers” to the list of approved originating sites for reimbursement of telehealth services.
  • H.R. 5763 National Telehealth Strategy and Data Advancement Act – would develop a plan for adoption and coordination of federal telehealth grants and data collection processes to build a strong evidence base to help drive policy changes to advance telehealth.

With U.S. maternal mortality exceeding rates in other developed nations, lawmakers continue to focus on identifying ways to improve maternal health care outcomes. To date, the current 116th Congress has introduced these bills:

  • Maternal Health Quality Improvement Act of 2019
  • Rural Maternal and Obstetric Modernization of Services Act
  • Healthy MOMMIES Act

The Tech to Save Moms Act is set to be introduced on March 10 by House Reps Underwood and Johnson as part of a broader maternal health package. The bill establishes the following requirements:

  • Center for Medicare & Medicaid Innovation Center (CMMI) to implement telehealth in maternal health care.
  • Funding for technology-enabled collaborative learning for maternity care providers in underserved areas, including training on the use of remote digital monitoring tools.
  • Grant program to support digital tools to improve maternal health outcomes for minority women.
  • Study on the use of artificial intelligence in maternal health care.

 

On the regulatory level, CMS is also taking steps to address maternal health issues. The agency recently released an RFI asking stakeholders to share information regarding barriers and opportunities for improving care, examples of successful initiatives, and suggestions for HHS and CMS support. The deadline for comments is April 12, 2020.

CMS released a proposed rule for Medicare Advantage (MA) and Part D (prescription) plans for 2021 and 2022 that includes several provisions that expand the availability to use telehealth by enrollees. Notably, CMS proposes to strengthen network adequacy rules for MA plans, improve access and encourage the use of telehealth. The deadline to submit comments on the proposed rule is April 6.

CMS is promoting a set of resources including a “how to bill correctly video” to help stakeholders submit proper claims for telehealth. This initiative is in response to the report released in 2018 by the HHS’ Office of the Inspector General (OIG) who determined that CMS was improperly paying practitioners for certain telehealth claims that did not meet Medicare requirements (i.e. rural, approved originating sites and provider types). Here are links to the resources:

HHS’s pair of interoperability rules continues to be in the news, although the final rules have not yet been released. Head of the Office of National Coordinator (ONC), Dr. Don Rucker, noted that the ONC rule, focused on interoperability and information-blocking, is working to balance data privacy and transparency. In a Health IT Advisory Committee meeting last week, Dr. Rucker stated that at least the ONC’s rule is expected soon; some are speculating the release will coincide with HIMSS in March. Large tech firms and consumer advocates have supported the rules, while others are concerned that the convenience conferred by the rule could come at the expense of patient privacy. Article found here

The Center for Connected Health Policy (CCHP) has unveiled a new Telehealth Billing Guilde aimed at helping healthcare providers understand reimbursement. The CCHP guide focuses primarily on fee-for-service Medicare rules and Medicaid policies, as exemplified in California’s Medi-Cal program. This useful resource offers guidance on billing for synchronous (real-time, interactive audio-video) and asynchronous (store-and-forward) telehealth, as well as, remote patient monitoring.

Women's health technology, "Femtech", is one of the fastest-growing and well-funded categories in digital health. Services in this space include fertility management, lactation care, heart health, pain management, chronic disease management, weight management, and general health management. Frost & Sullivan cites that Femtech is increasingly attractive to investors because women are statistically better consumers of digital health solutions than men; females are 75% more likely to use digital tools for health care than males. From 2014 to 2019, Femtech companies raised approximately $2 billion across 100 funding events. Article found here

January 2020

The Congressional Telehealth Caucus introduced the bipartisan, bicameral CONNECT for Health Act of 2019 to remove restrictions on reimbursement of telehealth services under the Medicare program. This major piece of legislation contains 15 provisions, including potential large-scale policy changes for emergency medical care and telebehavioral health services. Due to projected high cost estimates to enact the full bill, lawmakers will likely try to advance a few of CONNECT’s provisions in a Medicare or other healthcare legislative package – anticipated to be addressed in May. Thus, working in collaboration with other stakeholders, we are currently building congressional support for the emergency medical care telehealth provision (Section 5). This provision builds on the telestroke legislation that passed in the Bipartisan Budget Act of 2018 to remove the rural geographic restriction and enable nationwide reimbursement for any specialist consultation provided via telehealth to hospital EDs and SNFs. Any customers interested in joining this advocacy effort, please reach out to Jordana Bernard, Director, Policy and Public Affairs, jbernard@intouchhealth.com.

Expanding access to telebehavioral health services and broadband infrastructure continues to be a congressional priority. These bills were recently introduced to address these key areas of interest:

  • H.R. 5473 - Representatives Bilirakis (R-FL) and Soto (D-FL) introduced the Enhance Access to Support Essential Behavioral Health Services Act or the “EASE Behavioral Health Services Act”. The bill targets removal of geographic and originating site restrictions for telebehavioral health services under Medicare and Medicaid.
  • S. 3006 - Senator Murkowski (R-AK) introduced the Effective Suicide Screening and Assessment in the Emergency Department Act of 2019. This bill establishes a program to improve the management of patients in the emergency department who are at risk of suicide, including through the use of telehealth.
  • H.R. 5257 - Rep Cox (D-CA) introduced the Telehealth Expansion Act of 2019 that directs the FCC to establish a program to support and defray costs for the delivery of telehealth services.
  • S. 2956 - Senator Schatz (D-HI) introduced the Investing in America's Digital Infrastructure Act that directs the FCC to expand the usable spectrum for broadband expansion.
Anticipated new telehealth legislation will target these areas:
  • Standardizing federal telehealth grants and data collection processes to help build a strong evidence base to further removal of barriers to the utilization of telehealth.
  • Removing geographic restrictions for emergency telepsychiatry services provided to patients in hospital EDs and for follow-up care in the home.

The Ryan Haight Act, passed in 2009, requires an initial in-person visit prior to a physician prescribing a controlled substance via telehealth. The law also directs the DEA to develop regulations for a special telemedicine registration process that would create an exception to allow doctors to prescribe remotely under certain circumstances, potentially including medication-assisted treatment for substance use disorders. When the SUPPORT Act passed in 2018, Congress gave the DEA an October 2019 deadline to issue the rules, however, the agency has not yet complied. Various lawmakers have recently stepped up the pressure on the DEA to produce these long-awaited telemedicine regulations they say are necessary to bolster the federal government's response to the opioid crisis.

In this article, industry experts discuss the future of value-based care and issues preventing the widespread adoption of alternative payment models (APMs) – models that tie provider reimbursement to the value of care. While CMS views downside risk as the key to value, some providers are skeptical and take issue with being held accountable for outcomes beyond their control. Mark McClellan, former administrator of the CMS Innovation Center and former commissioner of the FDA, believes episodic and population-based models may fair better by giving providers the flexibility needed to invest in infrastructure to truly transform care. According to the Health Care Payment Learning & Action Network (LAN), which Mark also serves as Chair of the Guiding Committee, the healthcare industry is about a third of the way to payment reform and, therefore, is not yet sufficient to change business practices. Using data from 52 health plans, seven fee-for-service Medicaid states, and traditional Medicare, the LAN reports only one in three healthcare payments flows through an APM (i.e. ACOs, bundled payments, etc). Article available here

The Center for Connected Health Policy (CCHP) released a new report, State Telehealth Medicaid Fee-For-Service Policy—A Historical Analysis of Telehealth: 2013-2019. Overall, CCHP reports an increase in adoption of more expansive telehealth policies across Medicaid fee-for-service programs. Of note, there has been significant implementation of reimbursement policies for live video and remote patient monitoring services. Below is a summary of findings:

  • More states have enacted telehealth/telemedicine definitions into their Medicaid programs and these definitions have grown more comprehensive over time as states expand reimbursement to more modalities and specialties.
  • Live video is now reimbursable by all states and DC and many states have expanded reimbursement for additional medical specialties and services.
  • The number of states reimbursing for store-and-forward has increased slowly, with specific restrictions on the allowable types of specialties and reimbursable services.
  • The number of states reimbursing for remote patient monitoring has tripled; reimbursement is often limited to home health services or tele-monitoring for specific chronic conditions.
  • The number of states with consent requirements has tripled over the past seven years.
  • The number of Medicaid programs with geographic limitations has declined.
  • More Medicaid programs are providing lists of eligible originating sites; many states now include the patient’s home.

West Health created a practical guide to implementing telehealth in post-acute and long-term care settings. Guide available here

December 2019

Congressional leaders announced a year-end budget deal ($1.4 trillion) to fund the federal government through September 30, 2020. The deal includes approximately $12 million for telehealth grants and repeal of three healthcare taxes: the Cadillac tax on employer plans, a 2.3 percent tax on medical devices and a health insurance fee. Of note, the spending deal only extended expiring Medicare and Medicaid programs (commonly referred to as “extenders”) through May 22, 2020. Thus, Congress will need to introduce a new legislative package to refund these programs that creates a potential legislative vehicle for telehealth and other health-related provisions - such as drug pricing and surprise billing - to be included for passage. Given this new legislative opportunity, the industry needs to work collectively during the first half of 2020 before election activities go full swing, to build support for telehealth on the Hill. In early 2020, InTouch Health will disseminate an advocacy tool kit to assist with grassroots efforts.

Among 35 states, 113 telehealth bills passed in the 2019 legislative session, up significantly from 65 bills in 2018. Topic areas included interstate licensing compacts, telehealth demonstrations, pilots and grant programs, regulatory professional board practice standards including prescribing, and private payer laws. Texas, California, Washington, Georgia, Virginia and Maryland enacted the most telehealth legislation in 2019. Additionally, 54 telehealth related regulations were finalized in 35 states. See full CCHP summary of state legislation here.

Foley Lardner’s report on telehealth commercial payer statutes indicates states are making progress towards enacting laws that address coverage and payment of telehealth services by health plans. Currently, 42 states and DC have a commercial payer law in place. However, only 16 states maintain laws that explicitly address reimbursement of telehealth services, but only these ten states offer true “payment parity”: Arkansas, Delaware, Georgia, Hawaii, Kentucky, Minnesota, Missouri, New Mexico, Utah, and Virginia. California’s new parity law includes payment parity that goes into effect on January 1, 2021.

November 2019

The Congressional Telehealth Caucus introduced the bipartisan, bicameral CONNECT for Health Act of 2019 that builds on the successes of the previous version that had several of provisions, including the telestroke and ESRD provisions, signed into law last year in the Bipartisan Budget Act of 2018. This piece of legislation will likely be the largest, most impactful piece of telehealth legislation in the 116th Congress. Essentially the CONNECT Act’s 15 provisions aim to remove the statutory restrictions defined in the Medicare telehealth law to enable broad use of telehealth in fee-for-service, as well as, to push access to more telehealth for value-based care models. View details about the legislation.

House Reps Matsui and Johnson recently introduced a standalone, bipartisan telemental health bill (November 21). The legislation targets removal of the rural geographic restriction on originating sites and adds the patient’s home as an eligible site of care. This legislation mirrors the TBH, section 4 in the CONNECT Act, signaling TBH continues to gain momentum on Capitol Hill.

CMS released the final payment policies for telehealth for CY 2020. The new rules expand reimbursement opportunities for TBH providers treating opioid use disorders, RPM, and new asynchronous eVisits. The key changes impacting telehealth include:

  • Adds three bundled payments for office-based opioid use disorder treatment, as part of a monthly bundled episode of care. The bundle allows the therapy and counseling components to be delivered through telehealth in any geography and it allows services to be provided to the patient’s home per passage of the SUPPORT Act.
  • In addition, to comply with the SUPPORT Act, adds another set of bundled payments for opioid use disorder treatment services by opioid treatment programs, certified by SAMHSA. Similarly, the therapy and counseling components may be provided using telehealth without geographic restriction and into the patient’s home. Of note, CMS stated these services fall outside the physician fee schedule so the telehealth rules in 1834m do not apply and there is no facility fee.
  • For communication technology-based services (brief virtual check-in, store and forward visit, interprofessional visits), allows a single annual advance patient consent.
  • For RPM, (1) redefines the professional code 99457 to describe the initial 20 minutes of time spent providing services during the month; (2) adds a new code that pays for additional time spent in 20-minute blocks; and (3) considers RPM as a “care management service” which will allow remote general supervision of ancillary personnel through telehealth.
  • Adds online asynchronous digital evaluation services or eVisits that pays for cumulative time spent during a 7-day period by physicians, qualified health professionals, and non-physician health professionals; connects providers and patients through a HIPAA compliant secure platform (patient portal) for evaluation, assessment, and management services.

View summary for payment rates and more details

CMMI will provide primary care practices and other providers with five new risk-sharing payment models options under two paths: Primary Care First and Direct Contracting (capitated and partially capitated payments). These models build on lessons learned from initiatives involving Medicare ACOs, Medicare Advantage, and private sector risk-sharing arrangements. Providers participating in these models will be allowed to use telehealth. The two payment model options under Primary Care First include: Primary Care First (PCF) – General and Primary Care First – High Need Populations. The three payment model options under Direct Contracting include: Direct Contracting (DC) Global, Direct Contracting Professional, Direct Contracting Geographic. The first performance year will be in 2021. For more information go to https://innovation.cms.gov/.

The DEA missed the October deadline imposed by Congress in the SUPPORT Act to create the Special Telemedicine Registration for telemedicine providers. However, a recent announcement from the DEA indicates a proposed rule will be released in December, addressing the ability for providers to prescribe controlled substances via telehealth without an initial in-person visit.

The FCC released a report prepared by the Intergovernmental Advisory Committee regarding state, local, and tribal regulatory barriers and incentives to telehealth. The report examines how elements of broadband development and regulation act as barriers to the adoption of telehealth in rural and tribal areas across the country and provides recommendations to facilitate the expansion of telehealth. The report finds the lack of broadband connectivity and “people-based issues” have been the biggest barriers to adoption of telehealth i.e. people make the laws and regulations that have restricted reimbursement, licensure, etc.