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

Manatt, Phelps & Phillips, LLP

As the COVID-19 pandemic continues to spread across the United States, states, payors, and providers are looking for ways to expand access to telehealth services. 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 12:00 p.m. ET, Thursday, May 7, 2020.

Federal Laws, Policy, and Guidance

With respect to traditional, fee-for-service, Medicare, the Centers for Medicare & Medicaid Services (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 with 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. Last, the U.S. Department of Health & Human Services (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 May 7, all 50 states and Washington D.C. have introduced licensure flexibilities.

HIPAA Flexibilities:

On March 18, the HHS and the Office for Civil Rights (OCR) issued a public notice stating that OCR will not impose penalties for non-compliance with regulatory requirements under the Health Insurance Portability and Accountability Act of 1996 (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 HIPAA Flexibilities please see our April 22 summary.

Coverage and Reimbursement:

On March 30, 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, 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. 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, eligible providers included in the above expanded list 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 end-stage renal disease, 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.

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. Telehealth provisions include:

  • 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

FCC Guidance:

On April 9, the Federal Communications Commission (FCC) released a Report and Order establishing the COVID-19 Telehealth Program. The Telehealth Program will distribute the $200 million appropriation from Congress under the Coronavirus Aid, Relief, and Economy Security (CARES) Act in order to help health care providers provide telehealth services to patients in response to the COVID-19 emergency. Eligible organizations include: post-secondary educational institutions offering health care instruction, teaching hospitals, and medical schools; community health centers or health centers providing health care to migrants; local health departments or agencies; community mental health centers; not-for-profit hospitals; rural health clinics; skilled nursing facilities; and consortia of health care providers of one or more entities falling into any of the first seven categories. Each eligible organization can apply for a single award that will be capped at $1 million. The funding will cover:

  • Telecommunications Services and Broadband Connectivity Services: Voice services, and Internet connectivity services for health care providers or their patients.
  • Information Services: 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; and platforms and services to provide synchronous video consultation.
  • Internet Connected Devices/Equipment: tablets, smart phones, or devices to receive connected care services at home (e.g., broadband-enabled blood pressure monitors; pulse oximeter) for patient or health care provider use; and telemedicine kiosks/carts for health care provider sites.

As of May 6, the FCC’s COVID-19 Telehealth Program has funded 56 health care providers in 23 states for a total of $24.9 million in funding. The majority of awardees are hospitals and health systems located in epicenters of the pandemic that are seeking to expand existing video visits and remote patient monitoring (RPM) programs, or to add new hospital-based telehealth capabilities to protect patients and healthcare workers.

New and Expanded Flexibilities for Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs)

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. These changes will last for the duration of the COVID-19 emergency.

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

  • Section 3704 of the 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 must 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.

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 days there are 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 May 7, 48 states plus Washington, D.C., have taken steps to expand the use of telemedicine in their Medicaid programs during the COVID-19 emergency. Additionally, 20 states have released guidance to waive or lower telehealth copays 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.

Substance Use Disorder Guidance

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.

State Medicaid & CHIP Telehealth Toolkit

On April 23, the Trump Administrated released a COVID-19 Telehealth Toolkit to Accelerate State Use of Telehealth in Medicaid and CHIP. The toolkit provides information for states to expand telehealth capabilities, services, and coverage. Areas covered in the toolkit include patient populations eligible for telehealth, proposed coverage and reimbursement policies, providers and practitioners eligible to provide telehealth, technology requirements, and pediatric considerations.

State Highlights

As of May 7, 2020:

  • All 50 states plus Washington, D.C., have introduced licensure flexibilities
  • 48 states plus Washington D.C. issued guidance related to the expansion or reimbursement of telehealth services in Medicaid
  • 38 states plus Washington, D.C., provide payment parity in Medicaid for telehealth services
  • 20 states have waived or lowered cost sharing for telehealth
  • 41 states plus Washington, D.C., offer behavioral health services through telehealth
  • 30 states plus Washington, D.C., offer occupational therapy, physical therapy, and speech therapy services through telehealth
  • 38 states plus Washington, D.C., have issued Medicaid guidance to include audio-only telehealth services
  • 10 states have issued telehealth guidance for Child Well-care and EPSDT visits
  • 14 states have issued guidance to providers to allow for telehealth or remote care delivery for early childhood intervention services

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 for services that 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 the 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. In mid-April, the Louisiana Department of Health issued guidance for treatment-in-place by ambulance providers followed by a telehealth visit in the field with a licensed physician, physician assistant, or advanced practice registered nurse. This guidance will allow ambulance providers to be reimbursed the base rate, without mileage, and licensed healthcare providers to be reimbursed under the general telehealth policy.

Massachusetts: In Massachusetts, through executive order, Governor Charlie 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 COVID-19 epidemic. The Mississippi Division of Medicaid is temporarily allowing beneficiaries to access telehealth services from home; promoting the use of personal cellular devices, computers, tablets, or other web camera-enabled devices to seek and receive medical care; and waiving limitation of the use of audio-only telephonic. The Mississippi State Board of Medical Licensure has updated its licensure guidance to waive state licensure restrictions in order to allow out-of-state physicians “whose specialty services are determined to be necessary by MSDH [Mississippi State Department of Health]” 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 COVID-19 epidemic.

New York: New York has built on its robust telehealth policies during the COVID-19 epidemic. Since Governor Andrew 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. Recently, North Carolina released bulletins expanding telehealth coverage for well-child visits and postpartum depression screenings in Medicaid. Notably, for children under 24 months, North Carolina Medicaid continues to recommend in-person visits for the vast majority of well-child services, while a limited set of services may be delivered via telemedicine during the state of emergency, if necessary. However, for children 24 months and older, North Carolina Medicaid recommends that providers consider telemedicine to deliver a broad range of well-child services for children 24 months and older, as is clinically appropriate. In the weeks prior, the North Carolina Medicaid released bulletins broadening telehealth policies to include, optometry services, postpartum care visits, self-measured blood pressure monitoring, specialized therapies, such as physical, occupational, and speech, as well as dentistry and behavioral health.

State Trends

Appendix K Telehealth Flexibilities: As of May 7, CMS has approved Section 1915 (c) Waiver Appendix K (Appendix K) from 36 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 May 7, 15 of the approved Appendix K waivers included telehealth flexibilities for states. Some of these flexibilities include: adding electronic methods of delivery for case management, personal care services that only require verbal cueing, in-home habilitation, or monthly monitoring; temporarily modifying provider qualifications; temporarily modifying processes for level of care evaluations and re-evaluations; or temporarily modifying medication management.

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 a phone-only code for telehealth services that historically have required a video component. As of May 7, 38 state Medicaid agencies have issued guidance to allow for 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 health care 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 their Medicaid program. The AAP has issued guidance recommending all children still receive EPSDT visits. As of May 7, only 10 states have issued telehealth guidance for Child Well-care and EPSDT visits.

Early Intervention Services: As of May 7, 14 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 (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.

School-Based Telehealth: In the second week of April, states began 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 on 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 for 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).

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 its providers for the purpose of conducting telehealth services for their patients.

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, 10 states provided telehealth guidance for SUD services and treatment during COVID-19. As of May 7, six additional states have issued SUD-related guidance for telehealth.

Teledentistry: In early April, several states 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 May 7, 22 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. Conversely, some states have considered teledentistry but ultimately decided not to pursue; the Oklahoma Health Care Authority, for example, released a statement on March 27 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.”

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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