As the COVID-19 pandemic continues across the United States, states, payers, and providers are looking for ways to expand access to telehealth services. Telehealth is an essential tool in ensuring patients are able to access the healthcare services they need in as safe a manner as possible. In order to provide our clients with quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a federal and comprehensive 50-state tracker for policy, regulatory and legal changes related to telehealth during the COVID-19 pandemic. This summary of findings is current as of noon ET, Thursday, July 23.

Federal Legislation:

On July 2, a bipartisan group of 35 senators sent a letter to HHS Secretary Alex Azar and CMS Administrator Seema Verma urging them to provide Congress with “a written plan and timeline for permanent administrative changes to Medicare rules governing the provision of telehealth, and … a list of telehealth changes that will require Congressional action.” The letter emphasized the critical role of telehealth during the COVID-19 pandemic, referring to it as a “lifeline” for patients and providers, and highlighted the need for collaborative action between the Administration and Congress in order to make permanent telehealth policy changes. It is important to note that CMS has consistently stated that extending many of the temporarily waived telehealth restrictions will require Congressional action.

Select federal legislation currently being considered includes:

Federal Flexibilities:

State Laws, Policy, and Guidance

In Medicaid, states have broad authority to permit coverage for telehealth services. Prior to the COVID-19 emergency, many states had implemented broad coverage for telehealth, and in recent months, all 50 states and Washington D.C. have issued guidance expanding telehealth for their Medicaid populations. Medicaid programs have the broad ability to cover telehealth services and the flexibility to rapidly scale up benefits and adjust normal cost-sharing rules, making Medicaid well positioned to quickly address the needs of its beneficiaries during states of emergency.

State Legislation and Executive Orders

Since the COVID-19 public health emergency was declared, states have been moving to pass legislation that would permanently expand access to telehealth. The below chart lists telehealth legislation that has been enacted since March 13, the beginning of the PHE, and executive orders that have made the temporarily waived restrictions around telemedicine permanent.

State Trends

Commercial Payment Parity: In light of the COVID-19 pandemic, states that previously did not require payment parity for telehealth services in commercial plans have begun to issue temporary guidance requiring payment parity for specific telehealth cases. Prior to COVID-19, 9 states (Arkansas, Delaware, Georgia, Hawaii, Kentucky, Minnesota, Missouri, New Mexico, and Utah) had payment parity laws for commercial payers in 2020. California, Arizona and Washington had also recently passed telehealth payment parity legislation in 2019 and early 2020 that would come into effect in January 2021, bringing the total to 12 states. The Governor of Washington recently issued an Executive Order in March which required immediate implementation of its payment parity law.

Appendix K Telehealth Flexibilities: As of July 23, CMS has approved Section 1915(c) Waiver Appendix K (Appendix K) from 47 states and Washington, D.C. Appendix K is a long-standing federal authority that helps states streamline and expedite changes to their 1915(c) home and community-based services (HCBS) waivers to prepare for and respond to emergencies. As of July 23, at least 44 of the approved Appendix K waivers included telehealth flexibilities for states. Some of these flexibilities include adding electronic methods of delivery for case management; permitting personal care services that require only verbal cueing, in-home habilitation, or monthly monitoring; temporarily modifying provider qualifications; temporarily modifying processes for level of care evaluations and re-evaluations; and temporarily modifying medication management.

Audio-Only Telehealth Services: Many state Medicaid agencies are following Medicare’s lead to expand telehealth coverage to audio-only. This includes states that are either adding coverage for telephonic evaluation and management codes or allowing providers to bill the usual service codes when the services are delivered via telephone. As of July 23, all 50 state Medicaid agencies and Washington D.C. have issued guidance to allow for a form of audio-only telehealth services.

Child Well-care and Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) Visits:

EPSDT is a mandated benefit that provides comprehensive and preventive healthcare services for children under age 21 who are enrolled in Medicaid. Each state is responsible to provide EPSDT services to children and adolescents enrolled in its Medicaid program. The American Academy of Pediatrics has issued guidance recommending all children still receive EPSDT visits. As of July 23, only 15 states have issued telehealth guidance for Child Well-care and EPSDT visits.

Early Intervention Services: As of July 23, 16 states have issued guidance to providers to allow for telehealth or remote care delivery for early childhood intervention services. On April 5, Illinois’ Chief Bureau of Early Intervention cleared all previous Illinois Department of Healthcare and Family Services requisites in order to implement and practice Illinois’ first-ever Early Intervention Teletherapy. On April 6, the Illinois Early Intervention Program (IEIP) instituted use of Live Video Visits as a temporary measure until the Illinois state of emergency is lifted. The IEIP is now working on tip sheets for families in English and Spanish and developing resources to help families with internet fees and costs for a computer, camera, and microphone. On April 7, North Carolina (NC) Medicaid released new telehealth guidance expanding the services and provider types eligible to deliver telehealth during the COVID-19 pandemic. Special Bulletin COVID-19 #34 expands telehealth codes and guidance to services delivered through local education and children’s developmental service agencies, and services pertaining to dietary evaluation and counseling, medical lactation, research-based behavioral health treatment for autism spectrum disorder, and diabetes self-management education. NC Medicaid also published an accompanying billing code summary to equip providers with the new codes pertaining to telehealth.