Vermont’s New Telemedicine Law Expands Insurance Coverage, Bans Recording

by Foley & Lardner LLP
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Vermont health care providers and patients can now enjoy a revamped, and significantly improved, telehealth commercial insurance coverage law. Vermont Governor Phil Scott signed S. 50 into law on June 7, 2017, expanding commercial coverage and payment parity in the Green Mountain State by requiring Vermont Medicaid and private health plans to pay for telemedicine services at any patient originating site location rather than limiting coverage to services provided while the patient is located in a health care facility. The law also imposes some additional telemedicine practice standards, including a unique prohibition on recording telemedicine consultations.

The state’s prior telehealth coverage law required Vermont Medicaid and commercial insurers to cover telemedicine-based services only if the patient was located at a health care facility, such as a hospital. Under the new law, all health insurance plans in Vermont must provide coverage for health care services delivered through telemedicine to a patient at an originating site to the same extent that the plan would cover the services if they were provided through in-person consultation. The law broadly defines originating site as follows:

Originating site means the location of the patient, whether or not accompanied by a health care provider, at the time services are provided by a health care provider through telemedicine, including a health care provider’s office, a hospital, or a health care facility, or the patient’s home or another nonmedical environment such as a school-based health center, a university-based health center, or the patient’s workplace.

The “distant site” is the location of the health care provider delivering services through telemedicine at the time the services are provided. Under the statute, a health insurance plan means “any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402, as well as Medicaid and any other public health care assistance program offered or administered by the State or by any subdivision or instrumentality of the State.” The term “health insurance plan” does not include policies or plans providing coverage for specified disease or other limited benefit coverage.

Health insurance plans are allowed to limit coverage to providers in the plan’s network, although the new law removes the prior provision that allowed plans to require the originating site provider to document the reason the services are being provided by telemedicine rather than in-person.

The definition of telemedicine remains unchanged, and is as follows:

Telemedicine means the delivery of health care services such as diagnosis, consultation, or treatment through the use of live interactive audio and video over a secure connection that complies with the requirements of [HIPAA]. Telemedicine does not include the use of audio-only telephone, e-mail, or facsimile.

With regard to store and forward modalities, a health insurance plan “may reimburse for teleophthalmology or teledermatology provided by store and forward means and may require the distant site health care provider to document the reason the services are being provided by store and forward means.” The term store and forward means “an asynchronous transmission of medical information to be reviewed at a later date by a health care provider at a distant site who is trained in the relevant specialty and by which the health care provider at the distant site reviews the medical information without the patient present in real time.”

Other notable highlights of the Vermont law, including changes to telemedicine practice standards, include:

  • The law broadly defines health care provider as “a person, partnership, or corporation, other than a facility or institution, that is licensed, certified, or otherwise authorized by law to provide professional health care services in this State to an individual during that individual’s medical care, treatment, or confinement.”
  • Prescribing. Providers may issue prescriptions via telemedicine, without the need for an in-person exam. Treatment recommendations and prescriptions delivered via telemedicine are held to the same standards of appropriate practice as those of in-person settings.
  • Informed Consent. Providers must obtain and document the patient’s oral or written informed consent before using telemedicine. Details of the informed consent requirement, including certain exceptions where consent is not required, are set forth in the statute.
  • No Recording Allowed. As noted above, the law prohibits recording telemedicine consultations, stating: “neither a health care provider nor a patient shall create or cause to be created a recording of a provider’s telemedicine consultation with a patient.”

With an effective date of October 1, 2017, providers and insurers need to be ready and positioned for the patients who will want to enjoy this new coverage. Those providers who develop their business models, finalize their contractual arrangements, and timely deploy their telehealth offerings will have a strategic advantage come October.

Copyright 2017, American Health Lawyers Association, Washington, DC. Reprint permission granted.

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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