Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19

Manatt, Phelps & Phillips, LLP

As the coronavirus pandemic continues to spread across the U.S., states, payers and providers are looking for ways to expand access to telehealth. Improving access to telehealth is an essential tool in ensuring patients are able to access the health care services they need in as safe a manner as is possible. In order to provide our clients with quick and actionable guidance on the evolving telehealth landscape, Manatt Health has developed a comprehensive 50-state tracker for state-specific legal, policy, and regulatory changes related to telehealth during the COVID-19 pandemic. Our state summaries cover state licensure flexibilities related to COVID-19, telehealth coverage and payment changes for commercial plans, and telehealth coverage and payment changes in Medicaid. This summary of findings is current as of 2:30 pm Wednesday, April 15, 2020.


Federal Laws, Policy, and Guidance

Medicare. In traditional, fee-for-service, Medicare CMS issued guidance that extends coverage of telehealth services to beneficiaries regardless of where they are located allowing beneficiaries to access telehealth from their homes or from other community locations. Additionally, CMS introduced significant new flexibilities for Medicare Advantage (MA) plans to waive cost-sharing for testing and treatment of COVID-19, including telehealth visits during the crisis. MA plans may also provide enrollees access to Medicare Part B services via telehealth in any geographic area and from a variety of places, including beneficiaries’ homes during this period of emergency. Lastly, HHS has granted a blanket waiver related to, among other things, out-of-state licensure, which will enable providers licensed in one state to provide services to patients in another state. This guidance does not preempt state-specific licensure restrictions and states will need to waive these restrictions on their own. As of April 15, all 50 states and Washington D.C. have introduced licensure flexibilities.

On March 30th, CMS released an interim final rule outlining new flexibilities to pre-existing Medicare and Medicaid payment policies in the midst of the COVID-19 public health emergency. These provisions include expanding the list of eligible telehealth services, providing flexibility to providers in waiving co-pays, expanding the list of eligible types of providers who can deliver telehealth services, introducing new coverage for remote patient monitoring services, reducing frequency limitations on telehealth utilization, and allowing telephonic and secure messaging services to be delivered to both new and established patients. The provisions listed in this rule are effective March 31, with applicability beginning on March 1. We have summarized these provisions below.

Expansion of Telehealth Services. CMS added more than 80 additional telehealth services, including:

  • Emergency department visits
  • Initial and subsequent observation and observation discharge day management
  • Initial hospital care and hospital discharge day management
  • Initial nursing facility visits and nursing facility discharge day management
  • Critical care services
  • Domiciliary, rest home or custodial care services
  • Home visits
  • Inpatient neonatal and pediatric critical care
  • Initial and continuing intensive care services
  • Care planning for patients with cognitive impairment
  • Psychological and neuropsychological testing
  • Therapy services for physical and occupational therapy
  • Speech language pathology services
  • Radiation treatment management services
  • Licensed clinical social worker services
  • Clinical psychologists’ services

Note: CMS has not expanded the list of eligible distant site providers, only the list of services that can be provided via telehealth.

Expanded Use of Telephonic Visits (Virtual Check-Ins) and E-Visits (Secure Messages): CMS will now permit virtual check-in and E-Visit services to be provided to new and established patients (they’d previously been limited to established patients only). In addition, the above expanded list of eligible provider types will be able to provide these services. CMS also added coverage for new audio-only telephonic evaluation and management codes.

Expansion of Remote Patient Monitoring Services: CMS added coverage for a range of remote patient monitoring codes and is no longer requiring that the patient have multiple diseases.

Reducing Frequency Limitations: CMS is removing frequency limitations for inpatient visits, skilled nursing facility visits and critical care consult codes.

Other Relevant Changes:

  • CMS reinforced that in general, during the COVID-19 emergency period, physicians and other practitioners won’t be subject to administrative sanctions for reducing or waiving co-pays for telehealth services.
  • For patients with ESRD, clinicians are no longer required to have one “hands on” visit per month. CMS will also exercise enforcement discretion related to face-to-face visit requirements for patients receiving home dialysis.
  • CMS is no longer requiring clinicians to conduct face-to-face visits for evaluations and assessments related to National Coverage Determinations (NCD) or Local Coverage Determinations (LCD).
  • For nursing home residents, CMS is waiving the requirement that physicians and non-physician practitioners perform in-person visits.
  • Hospice providers can provide services via telehealth if it is feasible to do so and face-to-face encounters for recertification of the hospice benefit can be conducted via telehealth.
  • CMS clarified that annual consent may be obtained at the same time, and not necessarily before the time a telehealth service is furnished.

State Laws, Policy, and Guidance

In Medicaid, states have broad authority to permit coverage for telehealth services. Prior to the COVID emergency, many states had implemented broad coverage for telehealth, and in recent days there is even more expansive coverage policies emerging. It is critical for states to use their regulatory levers to expand upon these policies for the 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 the Medicaid well positioned to quickly address the needs of its beneficiaries during state of emergencies. As of April 15, 46 states plus Washington D.C. have taken steps to expand the use of telemedicine in their Medicaid programs during the COVID emergency. Additionally, 20 states have released guidance to waive or lower telehealth co-payments for their Medicaid population. During the month of March, Alaska, Minnesota, New Jersey, Vermont, and West Virginia have introduced or enacted telehealth legislation to increase telehealth access and coverage.

State Highlights

California: California is following in Massachusetts’ footsteps and directing commercial health insurance companies to provide increased access to health services through telehealth--including access to mental health and substance use disorder services—and requiring reimbursement rates for telehealth services that mirror payment rates for an equivalent office visit. Last year, California passed a bill that removed barriers to Medicaid reimbursement for community health clinics (CHCs) during states of emergency for telephonic services, and when services are provided in the beneficiary’s home.

Louisiana: During the last week of March, Louisiana went from encouraging use of telehealth to implementing progressive policies in response to the high incidence of the virus in their state. The Department of Health and the Department of Insurance have provided guidance to use telemedicine in COVID-19 and non-COVID-19 related services. Louisiana has specifically outlined telehealth guidance for behavioral health, occupational therapy, physical therapy, and speech therapy. Additionally, Louisiana Medicaid and all commercial carriers will now cover audio-only telehealth services waiving the video component requirement to qualify as telemedicine/telehealth.

Massachusetts: In Massachusetts, through executive order, Governor Baker has expanded access to telehealth services in all commercial insurers and MassHealth (state Medicaid) programs, waived all cost-sharing for any medically necessary treatment delivered via telehealth related to COVID-19 at in-network providers, waived any prior authorization barriers needed to obtain medically necessary telehealth services, and established a 24-hour process to allow medical professionals to receive a license to practice in Massachusetts. Additionally, MassHealth is partnering with Maven to provide free telemedicine appointments for Medicaid beneficiaries with symptoms of COVID-19.

Mississippi: Mississippi has drastically increased its telehealth coverage during the coronavirus epidemic. The Mississippi Division of Medicaid is allowing beneficiaries to access telehealth services from home; promoting the use of personal cellular device, computer, tablet, or other web camera-enabled device to seek and receive medical care; and waiving limitation of the use of audio-only telephonic conversations until April 30, 2020. The Mississippi State Board of Medical Licensure has updated their licensure guidance to waived state licensure restrictions to allow out-of- state physicians “whose specialty services are determined to be necessary by MSDH” to treat patients in Mississippi. Additionally, Mississippi submitted a Medicaid State Plan Amendment Telehealth Emergency Waiver to allow for telehealth service flexibilities during a state of emergency. Mississippi had payment parity for telehealth prior to the coronavirus epidemic.

New York: New York has built on its robust telehealth policies during the coronavirus epidemic. Since Governor Cuomo announced a disaster emergency in early March, the state has waived cost-sharing for in-network providers, allowed out-of-state providers and providers in New York that are not currently registered to provide telehealth services, and established telehealth reimbursement parity in Medicaid programs during the state of emergency.

North Carolina. North Carolina has continued to issue frequent guidance expanding telehealth services. The Medicaid Department has released bulletins on a weekly basis, most recently broadening telehealth policies to include optometry services, postpartum care visits, and even self-measured blood pressure monitoring, the first of all states to do so. In the weeks prior, North Carolina Medicaid has expanded covered telehealth services to include specialized therapies, such as physical, occupational, and speech, as well as dentistry and behavioral health.

State Trends

Early Intervention Services: Eleven states have issued guidance to providers to allow for telehealth or remote care delivery for early childhood intervention services. On April 5, the Chief Bureau of Early Intervention cleared all previous requisites from Illinois Department of Healthcare and Family Services in order to implement and practice Illinois’ first-ever Early Intervention Teletherapy. On April 6, the Illinois Early Intervention Program instituted use of Live Video Visits as a temporary measure until the Illinois state of emergency is lifted. The Illinois Early Intervention Program 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 7th, North Carolina (NC) Medicaid released new telehealth guidance expanding the services and provider types eligible to deliver telehealth during the COVID-19 pandemic. Special Bulleting 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. They published an accompanying billing code summary to equip providers with the new codes pertaining to telehealth.

School-Based Telehealth. In the second week of April, states have begun expanding telehealth services to include coverage for school-based telehealth for children to provide an additional access point for home-bound patients. Minnesota passed a waiver increasing the flexibilities around the patient/provider relationship for telehealth services, such as removing the requirement for an initial in-person visit and the cap limiting the frequency of telemedicine visits in a week. Similarly, Pennsylvania’s Medicaid Program issued guidance allowing telemedicine to be provided and billed for payment when delivered via the School-Based ACCESS Program for counseling, and occupational, physical, and speech therapy. Washington State and South Dakota’s Medicaid Program passed similar legislation. Across states, many of the services may be provided via an audio-only connection (in addition to live audio/video connections).

Substance Use Disorder Treatment: On April 2, CMS issued an informational bulletin regarding Medicaid coverage of telehealth services to treat substance use disorders (SUDs). This Guidance provides states options for Federal reimbursement for “services and treatment for SUD under Medicaid delivered via telehealth, including assessment, medication-assisted treatment, counseling, medication management, and medication adherence with prescribed medication regimes.” On April 1, nine states (California, Iowa, Kentucky, New York, Ohio, Oregon, Pennsylvania, South Dakota, and Texas) provided telehealth guidance for SUD services and treatment during COVID-19. As of April 15, two additional states (Virginia and South Carolina) have issued SUD-related guidance for telehealth.

State-sponsored telehealth technology for providers: In order to help their providers adopt telehealth services in light of the COVID-19 pandemic, Nevada and Washington are providing their clinicians with telemedicine technology. The Nevada State Medical Association received a grant from AZOVA, a telemedicine platform, to “make a telemedicine marketplace available to all Nevada physicians free of charge.” The Association is also partnering with DrFirst, a healthcare technology solutions and consulting firm, to provide further resources to its physicians for telehealth activities. Similarly, the Washington State Health Care Authority is offering a limited number of free Zoom technology licenses to their providers for the purposes of conducting telehealth services for their patients.

Audio-Only Telehealth Services: Many state Medicaid agencies are following Medicare’s lead to expand telehealth coverage to audio-only. States are either adding virtual check-in codes, telephonic codes, or allowing providers to bill using phone only for telehealth services that historically have required a video component. As of April 15, 34 state Medicaid agencies have issued guidance to allow for audio-only telehealth services.

Teledentistry: In early April, several states have added teledentistry to their list of covered or approved services during the COVID-19 pandemic, either across the state at large or through their Medicaid programs. As of April 15, 18 states have published statements promoting the use of teledentistry. North Carolina for instance, opened up teledentistry billing codes for Medicaid providers for both synchronous, real-time encounters and asynchronous, or “store-and-forward” services as well. Conversely, some states have considered teledentistry but ultimately decided not to pursue; the Oklahoma Health Authority for example, released a statement on March 27th stating that “OHCA has reviewed the possibility of opening codes for teledentistry and has concluded that current CDT dental codes do not allow for virtual encounters in the absence of real time diagnostic procedures.”

Commercial Insurance

There is significant variability in commercial coverage among states. Some payors provide broad coverage for telehealth services across their network, some have contracts with third-party vendors to provide tele-visits for their members, and others don’t cover telehealth at all. Plan-specific policies about telehealth coverage and reimbursement is thus highly variable. However, states do have the ability to mandate broad coverage of telehealth services by commercial plans. As of April 15, 46 state Division of Insurance (or state equivalent) have issued bulletins to increase telehealth utility.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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