Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 - July 2020

Manatt, Phelps & Phillips, LLP

[co-author: Adrienne Peng]

As states and federal agencies continue to combat the COVID-19 pandemic, they are also beginning to develop and implement permanent telehealth policy changes in order to continue to expand access to telehealth services beyond the pandemic period. Because of this, we have restructured our executive summary and added new information related to state and federal guidance, regulations, and legislation.

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 9.

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.

Federal legislation currently being considered includes:

Bill Key Proposed Actions

S. 2741: Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2019

  • Remove the geographic restrictions and allow the home to be an originating site for mental telehealth services
  • Remove the geographic restrictions for certain originating sites for emergency medical care services
  • Remove the geographic restrictions for federally qualified health centers (FQHCs) and rural health clinics (RHCs) and allow FQHCs and RHCs to furnish telehealth services as distant sites

S. 3988: Enhancing Preparedness through Telehealth Act

  • Amend the Public Health Service Act with respect to telehealth enhancements for emergency response
  • Evaluate mechanisms for payment or reimbursement for use of telehealth technologies and personnel during public health emergencies
  • Evaluate infrastructure and resource needs to ensure providers have the necessary tools, training, and technical assistance to provide telehealth services

S. 3998: Improving Telehealth for Underserved Communities Act of 2020

  • Simplify payments for telehealth services furnished by FQHCs and RHCs under the Medicare program
  • Increase limits on payment for RHC services

S. 4103: Telehealth Response for E-Prescribing Addition Therapy Services (TREAT) Act

  • Extend certain telehealth flexibilities by making permanent key waivers, including the ability to prescribe Medication Assisted Therapies (MAT) and other necessary drugs without needing a prior in-person visit and the ability to bill Medicare for audio-only telehealth services

H.R. 7233: To direct the Secretary of Health and Human Services and the Comptroller General of the United States to conduct studies and report to Congress on actions taken to expand access to telehealth services under the Medicare, Medicaid, and Children's Health Insurance programs during the COVID-19 emergency.

  • Direct the HHS Secretary and the Comptroller General of the United States to conduct studies and report to Congress on actions taken to expand access to telehealth services under the Medicare, Medicaid, and Children’s Health Insurance programs during the COVID-19 emergency

H.R. 7388: A bill to amend title XVIII of the Social Security Act to permit the Secretary of Health and Human Services to waive requirements relating to the furnishing of telehealth services under the Medicare program, and for other purposes

  • Permit the HHS Secretary to waive requirements relating to the furnishing of telehealth services under the Medicare program

Federal Flexibilities:

Policy COVID-19 Change Expiration Date
Relevant Legislation

The Coronavirus Preparedness and Response Supplemental Appropriations Act, signed on March 6, contains a provision to make telehealth services more widely available to Medicare enrollees in their homes during a declared emergency.

The act makes two changes to existing Medicare telehealth coverage policies under emergency circumstances:

  • First, the act allows the CMS to extend coverage of telehealth services to beneficiaries regardless of where they are located. This means even if the beneficiary is not in a healthcare facility or located in a nonurban or physician shortage area, the beneficiary can receive a covered telehealth visit. This new provision should allow beneficiaries to access telehealth from their homes or from other community locations.
  • Second, the act allows CMS to extend coverage to telehealth services provided by “telephone” but only those with “audio and video capabilities that are used for two-way, real-time interactive communication” (e.g., smartphones). However, to deliver the services, as the act is currently structured, a provider or member of the provider’s practice must have treated the patient within the past three years.

For more information on Medicare changes, see our March 17 Manatt newsletter.

End of public health emergency (currently 7/241)

CMS Guidance

On March 10, CMS introduced significant new flexibilities for Medicare Advantage (MA) and Part D plans to waive cost-sharing for testing and treatment of COVID-19, including emergency room and telehealth visits during the crisis.

MA plans are required to:

  • Cover Medicare Parts A and B services and supplemental Part C plan benefits furnished at noncontracted facilities; this means that facilities that furnish covered A/B benefits must have participation agreements with Medicare.
  • Waive, in full, requirements for gatekeeper referrals where applicable.
  • Provide the same cost-sharing for the enrollee as if the service or benefit had been furnished at a plan-contracted facility.
  • Make changes that benefit the enrollee effective immediately without the 30-day notification requirement at 42 § 422.111(d)(3). Such changes could include reductions in cost-sharing and waiving of prior authorizations.

For more information on Medicare changes, see our March 17 Manatt newsletter.

End of public health emergency (currently 7/24)

On March 30, CMS released an interim final rule (IFR) outlining new flexibilities to preexisting Medicare and Medicaid payment policies in the midst of the COVID-19 public health emergency (also, PHE).

These provisions include adding over 80 additional eligible telehealth services, giving providers flexibility in waiving copays, 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.

For more information on the IFR, see our April 9 Manatt newsletter.

End of public health emergency (currently 7/24)

On April 30, CMS released a second IFR with comment period, “Medicare and Medicaid Programs, Basic Health Program, and Exchanges; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency and Delay of Certain Reporting Requirements for the Skilled Nursing Facility Quality Reporting Program,” outlining further flexibilities in Medicare, Medicaid, and health insurance markets as a result of COVID-19.

  • Section D. Opioid Treatment Programs (OTPs) – Furnishing Periodic Assessments via Communication Technology (42 CFR 410.67(b)(3) and (4)): Temporary change to allow periodic assessments of individuals treated at OTPs to occur during the PHE by two-way interactive audio-video or audio-only communication
  • Section N. Payment for Audio-Only Telephone Evaluation and Management Services: Temporary increase in the reimbursement rates for telephonic care
  • Section AA. Updating the Medicare Telehealth List (42 CFR 410.78(f)): Temporary change to remove Medicare regulations that require amendments to the list of covered telehealth services be made through the physician fee schedule (PFS) rulemaking process and allow changes to be made to the list of covered telehealth services through subregulatory guidance only

For a summary of the second IFR, please see the May 5 Manatt Insights summary.

End of public health emergency (currently 7/24)

On April 2, CMS issued an informational bulletin regarding Medicaid coverage of telehealth services to treat substance use disorders (SUDs)—one of many guidance documents required by the October 2018-enacted Substance Use Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act.

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.”

For a summary of this bulletin, please see the April 6 Manatt Insights summary.


On April 17, CMS released Frequently Asked Questions (FAQs) on Medicare Fee-for-Service Billing and highlighted several changes to RHC and FQHC requirements and payments.

New Payment for Telehealth Services (real-time, audio visual):

  • Section 3704 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes RHCs and FQHCs to provide distant site telehealth services to Medicare beneficiaries. Services can be provided by any health practitioner working for the RHC or the FQHC as long as the service is within their scope; there is no restriction on locations where the provider may be to furnish telehealth services.
  • FQHCs and RHCs are paid a flat fee of $92 when they serve as the distant site provider for a telehealth visit.
  • CMS will pay for all reasonable costs for any service related to COVID-19 testing, including relevant telehealth services. RHCs and FQHCs must waive the collection of co-insurance for COVID-19 testing-related services.

Expansion of Virtual Communication Services (telephone, online patient communication):

  • Virtual communication services now include online digital evaluation and management services. CPT codes 99421–23 have been added for non-face-to-face, patient-initiated, digital communications using a secure patient portal.

For more information on Expanded Telehealth Reimbursement for FQHCs and RHCs, see our June 9 Manatt newsletter.

End of public health emergency (currently 7/24)

Health Insurance Portability and Accountability Act of 1996 (HIPAA) Guidance

On March 18, the HHS and the Office for Civil Rights (OCR) issued a public notice stating that OCR will not impose penalties for noncompliance with regulatory requirements under the HIPAA rules “against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”

This will allow providers to communicate with patients through telehealth services and remote communications technologies during the COVID-19 national emergency. Providers may use any non-public-facing remote communication product that is available to communicate to patients; these applications can include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype.

For more information on our HIPAA summary, see our April 23 Manatt newsletter.

End of public health emergency (currently 7/24)

State Licensure Guidance

The March 13 COVID-19 National Emergency Declaration temporarily waives Medicare and Medicaid requirements that out-of-state providers be licensed in the state where they are providing services, when they are licensed in another state.

Within Medicare, this waiver should allow providers licensed in one state to provide services to patients in another state (including via telehealth).

Within Medicaid, this guidance does not preempt state-specific licensure restrictions, and states will need to waive these restrictions on their own. As of July 9, all 50 states and Washington, D.C., have introduced licensure flexibilities.

For more information on our National Emergency Declaration summary, see our March 17 Manatt Newsletter.

End of public health emergency (currently 7/24)

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 Summary of Key Telehealth-Related Legislation and Executive Orders

HB 29: Require insurance carriers that provide coverage for in-person mental health benefits to cover the same benefits via telehealth.


SB 20-212: Bar insurance carriers from requiring pre-established patient-provider relationships prior to a telehealth encounter, and prohibits imposing additional certification, location, or training requirements as a condition of reimbursement for telehealth services. Require state Medicaid program to reimburse FQHCs, RHCs, and the federal Indian health service for telemedicine services provided to Medicaid recipients at the same rate as in-person services.


Executive Order No. 2020-13: Make the temporarily waived restrictions around telemedicine permanent.


SF 2261: Establish a patient-provider relationship with a student who receives behavioral health services via telehealth in a school setting and set forth requirements for schools in order to provide behavioral health services via telehealth in the school setting.


HB 449: Expand the definition of telehealth to include the delivery of behavioral health services.

HB 530: Require any new policy, contract, program, or health coverage plan issued on and after January 1, 2021 to provide coverage of healthcare services provided through telehealth or telemedicine.


SP 676: Require at least some portion of case management services covered by the
MaineCare program to be delivered through telehealth, without requiring qualifying
criteria regarding a patient's risk of hospitalization or admission to an emergency


SB 402 and HB 448: Authorize certain health care practitioners to establish a practitioner-patient relationship through telehealth interactions. Require a health care practitioner provide telehealth services to be held to the same standards of practice that are applicable to in-person settings and, if clinically appropriate, provide or refer a patient for in-patient services or another type of telehealth service.

HB 1208 and SB 502: Require the Maryland Medical Assistance Program, subject to a certain limitation, to provide mental health services appropriately delivered through telehealth to a patient in the patient's home setting.


HB 5412: Bar an insurer that delivers, issues for delivery, or renews in this state a health insurance policy from requiring face-to-face contact between a health care professional and a patient for services appropriately provided through telemedicine, as determined by the insurer.

HB 5413: Bar a group or nongroup health care corporation certificate from requiring face-to-face contact between a health care professional and a patient for services appropriately provided through telemedicine, as determined by the insurer.

HB 5416: Cover telemedicine services under the medical assistance program and Healthy Michigan program if the originating site is an in-home or in-school setting, in addition to any other originating site allowed in the Medicaid provider manual or any established site considered appropriate by the provider, beginning October 1.

North Carolina

SB 361: Enact the Psychology Interjurisdictional Licensure Compact and Increase public access to professional psychological services by allowing for telepsychological practice across state lines subject to Compact requirements.

New York

SB 8416: Adds audio-only forms of telehealth (e.g. telephone) to the state’s definition of telehealth and telemedicine.


HB 313: Amend the definition of telemedicine services, clarify the scope of telehealth practice, and require certain health benefits plans to provide coverage parity and “commercially reasonable” reimbursement for telehealth services.


HB 1332: Develop and implement, by January 1, 2021, a component of the State Health Plan a Statewide Telehealth Plan to promote an integrated approach to the introduction and use of telehealth services and telemedicine services.

HB 1701: Require the Department of Health Professions to pursue reciprocal agreements with states contiguous with the Commonwealth for licensure for certain primary care practitioners under the Board of Medicine.


SB 5385: Reimburse providers for telemedicine services at the same rate as health care service provided in-person beginning January 1, 2021. Reimbursement for a facility fee must be subject to a negotiated agreement between the originating site and the health carrier.

West Virginia

HB 4003: Require telehealth insurance coverage of certain telehealth services after July 1, 2020. The plan shall provide reimbursement for a telehealth service at a rate negotiated between the provider and the insurance company.

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 9, 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 9, 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 9, 40 state Medicaid agencies 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 9, only 14 states have issued telehealth guidance for Child Well-care and EPSDT visits.

Early Intervention Services: As of July 9, 15 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.

1 As of July 9, the PHE has not been extended. One June 30 the official account of the HHS Assistant Secretary for Public Affairs tweeted the department "expects to renew" the public health emergency for COVID-19 currently set to expire July 24.

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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