The Good and the Bad of the New MassHealth Telemedicine Rule

Foley & Lardner LLP

The Massachusetts Medicaid Program (known locally as MassHealth) issued a new All Provider Bulletin in January, setting forth new policies for certain behavioral health services delivered to MassHealth covered patients. The guidance received mixed responses from the telehealth industry.

  • The good: MassHealth-participating Community Health Centers, Community Mental Health Centers, and Outpatient Substance Use Disorder providers can enjoy Medicaid coverage and reimbursement of certain mental health and substance use disorder services delivered via telehealth.
  • The bad: only interactive audio-video is covered, and the bulletin imposes a variety of telehealth practice standards (including written policies and training program conditions) that are not required under Massachusetts professional licensing laws and which do not apply to Massachusetts providers outside the MassHealth program. It also requires ongoing in-person exams when prescribing controlled substances, as an additional layer on top of the federal Ryan Haight Act

The MassHealth coverage of telehealth-based mental health services went live January 1, 2019. Providers who submit claims for services delivered via telehealth must use place of service code 02. There is no originating site facility fee available. The telehealth modality must “conform to industry-wide compressed audio-video communication standards for real-time, two-way, interactive audio-video transmission.” Asynchronous or interactive audio with store & forward is not an eligible modality under the bulletin. Only behavioral health professionals who have been trained in the provision of services via telehealth, including training in the use of the telehealth equipment, may provide telehealth services. Moreover, providers delivering services via telehealth must have a training program in place to ensure the competency of all staff members involved in the delivery of services via telehealth.

With regard to prescribing controlled substances, the bulletin’s recurring in-person exam requirement erects a hurdle even higher than the federal Ryan Haight Act. In order to prescribe Schedule II controlled substances, telehealth prescribers must conduct an initial in-person exam plus recurring in-person exams every 3 months while that provider is prescribing medication to the patient. The ongoing examinations may be performed by a primary care provider if the results of the examination are shared with the telehealth prescribing provider. This requirement could undermine the access to care benefits typically enjoyed by patients who use telehealth for their mental health and substance use disorder treatment. It could represent an even more glaring obstacle once the DEA’s forthcoming telemedicine special registration rules are promulgated later this year.

Read the entire MassHealth All Provider Bulletin 281 and its requirements here.

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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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