The SUPPORT for Patients and Communities Act (“the Act” or “the SUPPORT Act”), signed into law by President Trump on October 24, 2018, is intended to combat the growing opioid crisis in the United States. The Act aims at preventing opioid addiction and misuse and enhancing access to care for those who have substance use disorders.

A key aspect of the Act is the expanded Medicare coverage of telehealth services to beneficiaries in their home (see Section 2001 of the Act). Currently, and historically, Medicare has restricted coverage of telehealth services to beneficiaries who reside within certain geographic rural areas and who seek such services at specific “originating sites” (patient beneficiary’s home is not included in the current Medicare definition for “originating site”). The Act amends 42 U.S.C. § 1395m(m) to eliminate these coverage restrictions for “an eligible telehealth individual with a substance use disorder diagnosis for purposes of treatment of such disorder or co-occurring mental health disorder, as determined by the Secretary [of Health and Human Services].” With this amendment in place, health care providers may now be reimbursed for providing eligible substance use disorder services to Medicare beneficiaries in their homes via telehealth. Although the Act does not provide for any “facility fee” reimbursement for telehealth services provided to beneficiaries in their homes, the Act requires reimbursement be provided to physicians and other health care practitioners furnishing these services at the same rate as they would otherwise receive if providing the same services in-person.

It is important to note that while Section 2001 of the Act takes effect on July 1, 2019, it authorizes the Secretary of the U.S. Department of Health & Human Services (“Secretary”) to implement these amendments immediately by creating a final interim rule.  The Act also mandates that the Secretary report on the impact of this legislation on: (1) the health care utilization (and in particular, emergency department visits) related to substance use, and (2) “health outcomes related to substance use disorders,” including opioid overdose deaths. The Act provides $3 million to the Centers for Medicare & Medicaid Program Management Account in order to carry out these reporting requirements, which must be completed within five years.

Another key aspect of the Act mandates that the U.S. Attorney General (“Attorney General”) promulgate final regulations that specify (1) “the limited circumstances in which a special registration under this subsection may be issued” and (2) “the procedure for obtaining a special registration.” Under 21 U.S.C. 831(h), as amended by The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (“Ryan Haight Act”), this special registration would allow health care providers to prescribe controlled substances via telemedicine when legitimately necessary, including when an in-person evaluation is not possible. As discussed in one of our recent TechHealth Perspectives blog posts, despite the statutory mandate in the Ryan Haight Act passed more than eight years ago, the Attorney General has not yet issued any regulations or guidance on how to obtain this special registration. The Drug Enforcement Administration (“DEA”), the federal agency delegated authority to promulgate these regulations by the Attorney General, has also not promulgated any regulation or other guidance addressing special registration. The SUPPORT Act gives the Attorney General until October 24, 2019, to promulgate its final regulations on this matter.

Epstein Becker & Green plans to discuss the Act’s numerous provisions in greater detail in future Client Alerts.

Effective June 11, 2018, all Department of Veterans Affairs (“VA”) health care providers will be able to offer the same level of care to all beneficiaries regardless of the beneficiary’s or the health care provider’s location. In its recently released final rule, the VA stated that in December 2016 Congress mandated that the agency provide veterans with a self-scheduling, online appointment system, and that the agency meet the demands for the provision of health care services to veterans, regardless of whether such care was provided in-person or using telehealth technologies. As a general rule, most telehealth practitioners are required to comply with various and state-specific licensing, registration, and certification requirements in order to render health care services via telehealth. Failure to do so can potentially jeopardize a practitioner’s professional credentials and could expose them to penalties including fines and imprisonment for the unauthorized practice of medicine or other health care services. These state-specific requirements create certain challenges for telehealth practitioners seeking to practice across state lines.

Therefore, in order to address the mandate issued by Congress, the VA developed and published the final rule to supersede these state-to-state regulations by clarifying that VA health care providers may exercise their authority to provide health care services via telehealth, notwithstanding any state laws regarding licensure, registration, or certification requirements that might be conflicting with taking these actions. Essentially, the VA is exercising its authority as a federal agency to preempt conflicting state laws relating to the practice of medicine or other health care services via telehealth. These efforts by the VA are designed to better protect its health care providers from potential enforcement actions by individual states and/or their respective professional boards, provided that these practitioners are providing telehealth services within the scope of their VA employment.

It must be noted that the final rule’s scope is narrow and only applies to health care providers who are employed by the VA. The final rule does not cover contractors, including health care providers who are participating in the Choice Program. The final rule also does not expand the scope of practice for VA health care providers beyond what is required or authorized by federal laws and regulations or the laws and regulations relating to the practice of medicine or other health care services that are dictated by the state(s) in which the health care provider is licensed to practice. Additionally, the final rule does not affect the VA’s existing requirement that all VA health care providers must adhere to all applicable laws and regulations regarding prescribing and administering of controlled substances, which not only obligates a provider to comply with such laws in the state(s) where he/she is licensed to practice, but also with the federal Controlled Substances Act.

Among the public comments submitted in response to the VA’s proposed rule, published October 2, 2017, the Federal Trade Commission, an agency that has been a big proponent of efforts to expand access to telehealth services, applauded the amendments to the VA’s regulations, stating that it will “provide an important example to non-VA health care providers, state legislatures, employers, patients, and others of telehealth’s potential benefits and may spur innovation among other health care providers and, thereby, promote competition and improve access to care.”

Telehealth providers and stakeholders should closely follow the VA’s progress as the agency works to implement the final rule. Any resulting successes, as well as any failures, may meaningfully impact the continued expansion and adoption of telehealth technologies and services among the private and commercial sectors, as well as potentially influence continued state legislative efforts in this developing area.

The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) recently released a report revealing that during OIG’s 2014 and 2015 audits of telehealth claims, more than half of the professional telehealth claims paid by the Medicare program did not have matching originating-site facility claims.

According to the report, Medicare telehealth spending increased from $61,302 in 2001 to $17,601,996 in 2015. Among the 191,118 Medicare paid distant-site telehealth claims (totaling $13,795,384), the OIG randomly sampled 100 of those claims and obtained supporting documentation to determine whether the paid telehealth services were allowable under the Medicare requirements. Approximately a third of the claims did not meet certain Medicare requirements, including:

  • 24 claims were unallowable because beneficiaries received services at non-rural originating sites that did not fall under the demonstration program exception. For proper telehealth Medicare reimbursement, beneficiaries must be located in either: (1) an HPSA that is outside of an MSA or within a rural census tract of an MSA, as of December 31 of the preceding year, or (2) a county that is not included in an MSA as of December 31 of the preceding year. Providers should check whether their patients’ location qualify as an originating site via the Medicare Telehealth Payment Eligibility Analyzer.
  • 7 claims were billed by ineligible institutional providers. Institutional facilities at a distant site may bill Medicare only if: (1) the facility is a CAH that elected the Method II payment option and the practitioner reassigned his or her benefits to the critical access hospital (CAH) or (2) the facility provided medical nutrition therapy (MNT) services.
  • 3 claims were for services provided to beneficiaries at unauthorized originating sites. Telehealth services must be furnished to a beneficiary that is located in one of the following sites: the office of a practitioner, a hospital, a CAH, a rural health clinic, a federally qualified health center, a hospital-based or CAH-based renal dialysis center, a skilled nursing facility, or a community mental health center.
  • 2 claims were for services provided by an unallowable means of communication. Under the Federal regulations, telehealth practitioners must provide telehealth services using an interactive telecommunications system, which excludes telephone, fax, or email. However, CMS provides a carve-out for asynchronous store and forward technology for Federal telemedicine demonstration programs in Alaska and Hawaii.
  • 1 claim was for a non-covered service. Practitioners should refer to the CMS website for the list of telehealth services payable under the Medicare physician fee schedule. Changes to the list are made annually.
  • 1 claim was for services provided by a physician located outside the U.S. Telehealth services are only covered if those services are provided within the U.S.

The OIG largely cited that many of these claims should not have been approved and reimbursed in the first place. For example, the majority of claims related to unallowable geographical locations of the originating sites. Presently, Medicare Administrative Contractors (MACs) do not have a process of editing these types of errors because claim forms do not have designated field for the originating-site location. The claim forms also do not have a field determining the form of communication used by the practitioner. CMS officials stated that it would be unlikely that the forms would include such designations because those designations would not be applicable to non-telehealth practitioners who use the same claim forms.

The OIG recommended that CMS take the following actions:

  • Conduct periodic post-payment reviews for errors for which telehealth claims edits cannot be implemented;
  • Work with MACs to implement all telehealth claim edits listed in the Manual; and
  • Offer education and training sessions to practitioners on Medicare telehealth requirements and related resources.

To date, there have not been any reported cases of enforcement actions taken against telehealth practitioners and stakeholders. However, practitioners and stakeholders should be aware that qui tam actions under the False Claims Act (FCA) may be brought by whistleblowers. The first FCA case was brought in 2016 where a Connecticut mental health practice allegedly submitted false claims to Medicare for telehealth service provided to patients. The complaint alleged that the physician and mental health practice did not use interactive audio and video communications, but simply treated Medicare beneficiaries over the telephone. Although that settlement only amounted to $36,704, the recent OIG report should signal to telehealth practitioners and stakeholders that OIG is now aware and will most likely hold telehealth service providers more accountable for complying with both Federal and state telehealth laws and regulations.

Therefore, practitioners and stakeholders should familiarize themselves with Medicare telehealth requirements as they will most likely change in the next several months, seen most recently with the passage of the Bipartisan Budget Act of 2018, which expanded coverage of telehealth services under Medicare related to telestroke care, Medicare Advantage, and accountable care organizations.

In March 2018, the Medicaid and CHIP Payment and Access Commission (MACPAC) made its 2018 report to Congress, which included the Commission’s evaluation of telehealth services provided through the Medicaid program. Chapter 2 of MACPAC’s report had a positive outlook on telehealth’s contribution toward better accessibility of health care services to underserved individuals as well as individuals with disabilities.

Unlike its larger counterpart, Medicare, federal policy has not placed many restrictions on state Medicaid programs in terms of adopting or designing telehealth coverage policies. For example, there is limited reimbursement coverage of telehealth services provided through the Medicare Fee-For-Service (FFS) program (e.g., geographical restrictions). However, there is little federal guidance or information regarding the implementation of telehealth services in state Medicaid programs or coverage for these services. As a result, state Medicaid coverage of telehealth services is highly variable across state lines, in terms of telehealth modalities, specialties and services, provider types, and even permissible site locations where telehealth services may be rendered. This high degree of variability stems, at least in part, from the unique federal-state partnership that provides the foundation for all state Medicaid programs.

Federal Medicaid Program Requirements. Although the federal requirements for coverage of telehealth services provided through the Medicaid program are few, in comparison to comparable requirements under the Medicare FFS program, some broad CMS guidelines do require Medicaid providers to practice within the scope of their state practice laws and to comply with all applicable state professional licensing laws and regulations. Additionally, any payments made by state Medicaid programs for telehealth services must satisfy the federal Medicaid program requirements for efficiency, economy, and quality of care. Furthermore, although Medicaid program requirements for comparability, state-wideness, and freedom of choice do not apply to telehealth services, states choosing to limit access to telehealth services (e.g., limited to particular providers or regions) must ensure access to and cover face-to-face visits in areas where such services are not available. Moreover, states are not required to submit a Medicaid state plan amendment to cover and pay for telehealth services as long as the program is in a state where telehealth parity laws are in effect, which are intended to ensure same coverage and payment of telehealth services as those provided in-person.

State-to-State Variations in Medicaid Coverage of Telehealth Services. A big focus of the MACPAC report was the impact that state-by-state variations may have on providing access to telehealth services through state Medicaid programs. As previously noted, because of the lack of any unified federal telehealth policy, state Medicaid program coverage of telehealth services is inconsistent. Some states, like West Virginia, mirror their Medicaid policies and regulations after the Medicare program, meaning that telehealth services are covered only if the originating site is in a rural location that either meets the definition of a non-metropolitan statistical area or a rural health professional shortage area, or originating site must be at hospitals, critical access hospitals, physician offices, federally qualified health centers, etc. In other words, in these states, Medicaid recipients would be required to travel to particular qualified locations for their telehealth service to be covered under Medicaid. Interestingly, MACPAC reported that some states that initially adopted these Medicare-like standards have changed their policies over time, as the state Medicaid programs have gained experience and understanding of the implications for access, cost, and quality. Other states are increasingly allowing homes, workplaces, and schools to serve as originating sites for telehealth services, while some states do not explicitly require patients to be at any specific sites in order to receive telehealth services. For example, while West Virginia’s Medicaid program specifies that originating sites must be a physician’s or other health care practitioner’s office, hospitals, rural health centers, skilled nursing facilities, etc., Medicaid recipients in Washington state may choose the location they would like to receive telehealth services, without these types of restrictions.

Similarly, the types of telehealth services that are covered vary greatly from state-to-state. For example, Idaho’s Medicaid program covers live video telehealth for mental health services, developmental disabilities services, primary care services, physical therapy services, occupational therapy services, and speech therapy services. In contrast, Arizona’s Medicaid program covers live video telehealth for a variety of specialty services including cardiology, dermatology, endocrinology, pediatric subspecialties, hematology-oncology, home health, infectious diseases, neurology, obstetrics and gynecology, oncology and radiation, ophthalmology, orthopedics, pain clinic, pathology, pediatrics, radiology, rheumatology, and surgery follow-up and consultation.

Across state Medicaid programs there also is wide variation regarding the types of health care practitioners who may provide telehealth services to Medicaid program recipients. Nineteen states (e.g., Connecticut, Florida, Hawaii, Iowa, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Utah, and Vermont) do not specify the type of providers that may provide health care services via telehealth and therefore are presumed to have the most inclusive provider policies. There also is variation with respect to professional licensure requirements for these providers, with some state policies allowing out-of-state practitioners to provide telehealth services as long as they are licensed in the state from which they are providing the service and are registered with the state’s Medicaid program (e.g., Arizona) while other state policies require practitioners to be licensed or certified to practice in the state unless only providing episodic consultation services (e.g., Arkansas).

States set their own payment levels for telehealth services provided to Medicaid recipients. Some payment rates for telehealth services may be lower than payment rates for the same services provided in-person. State Medicaid programs also vary in terms of payments for facility fees and transmission fees, which assist providers with covering associated telecommunications costs. Additionally, state Medicaid policies for telehealth services may differ between managed care and FFS plans. Some states do not require Medicaid managed care plans to provide services via telehealth at all. For example, Florida’s live video telehealth is covered under Medicaid FFS but is optional for Medicaid managed care plans, while in Massachusetts telehealth services are not covered under Medicaid FFS but there is some coverage under at least one of the state’s Medicaid managed care plans.

Despite these variations, MACPAC found that Medicaid plays a significant role as a payor with respect to the following types of telehealth services:

Behavioral Health. MACPAC reported that non-institutionalized adult, children, and adolescents covered by Medicaid have a higher rate of behavioral health disorders compared to their privately insured counterparts. Barriers to care include fragmented delivery systems, lack of accessibility to provider and resources, and patients’ concerns regarding confidentiality and fear of stigma attached to seeking mental treatment. MACPAC reported that there is increasing evidence that telehealth has the potential to improve access to evidence-based care for mental health and substance use disorders for individuals located in underserved areas. As of now, all state Medicaid programs that cover telehealth services include as part of that coverage access to behavioral health services via videoconferencing, although the scope of coverage varies state-to-state. Generally, most commonly covered services include mental health assessments, individual therapy, psychiatric diagnostic interview exams, and medication management. Although most state Medicaid programs will cover behavioral health services via telehealth if provided by licensed or certified psychiatrists, advanced practice nurses, and psychologists, some states also will cover those services if treatment is delivered by social workers and/or counselors. MACPAC reported that there is a growing number of studies showing that behavioral health care services provided via telehealth is effective, particularly for assessment and treatment of conditions such as depression, post-traumatic stress disorder, substance use disorder, and developmental disabilities. MACPAC reported high patient satisfaction with behavioral health care services via telehealth was on par with non-Medicaid payor populations, although MACPAC indicated that more research is needed.

Oral Health. Oral health services among Medicaid participants are relatively low. Barriers to oral health care include cost, difficulty of finding dentists who accept Medicaid, and inconvenience of location and time. MACPAC reported that the use of telehealth in dentistry has been recognized for its potential in improving access to primary and specialty oral health care services in communities that either lack or have limited provider capacity. Typically a patient is joined by an oral health professional at the originating site during a real-time video consultation with a dentists or specialty dentists for diagnosis and development of a treatment plan. Store-and-forward modality allows the provider at the originating site to send images (i.e., x-rays, photographs, lab results) to the dentist for review. As of 2017, 11 states were identified for including some Medicaid coverage for teledentistry (e.g., Arizona, California, Colorado, Florida, Hawaii, Minnesota, Missouri, Montana, New Mexico, New York, and Washington). Studies have shown that certain teledentistry services such as screening of childhood dental caries and orthodontic referrals appear to be as effective as in-person visits. MACPAC reported that patients expressed satisfaction of these dental health care services provided via telehealth because of greater convenience and improved access to care.

Maternity Care. In 2010, although state Medicaid programs covered nearly half of all births in the U.S., nearly 50 percent of U.S. counties had no obstetrician-gynecologists providing direct patient care. Telehealth can be used to manage pregnancies in several ways including the use of videoconferencing between a patient and her regular maternity care provider or between two providers during labor and delivery. Live videoconferencing could also be utilized during genetic counseling or even neonatal resuscitation. MACPAC reported that pilot studies have tried videoconferencing for prenatal care visits, group prenatal care, and breastfeeding support, which include women with both high-risk and low-risk pregnancies. MACPAC also reported that an emerging practice is the use of telehealth to diagnose congenital heart defects via live videoconferencing between the radiographer and fetal cardiologists, or the use of store-and-forward technology to allow a specialist to review echocardiograms post hoc.

MACPAC Recommendations. Before integrating or expanding telehealth services in their respective Medicaid programs, MACPAC recommended that states weigh the costs and the resource requirements associated with using or implementing telehealth against their goals of improving access for Medicaid recipients to needed health care services. One of the primary concerns voiced against greater use of telehealth services is the inappropriate use or overuse of those services. For example, MACPAC asked the states to consider whether inclusion of facility or transmission fees would increase the overall costs to their Medicaid programs if telehealth services replaced in-person services. MACPAC also asked states to consider whether telehealth services had the potential to increase fragmentation of care if services were provided by different telehealth providers or providers were unable to obtain updated patient medical records. MACPAC emphasized that while there appeared to be growing number of studies showing the effectiveness of telehealth services, there are still very few published studies addressing the effect of telehealth in Medicaid populations.

MACPAC also noted several factors that contributed to limited adoption of telehealth in Medicaid. The combination of lower payment rates for Medicaid and yet potential high costs for licensing across different state lines may deter providers from using telehealth for Medicaid services. Telehealth technology is dependent on reliable and affordable broadband connectivity. Unfortunately many rural areas and Native American reservations still lack such connectivity. An estimated 53 percent of individuals living in rural areas lack access to broadband speeds needed to support telehealth. Furthermore, costs of broadband can be almost three times that in urban areas. Costs associated with the acquisition, installation, and maintenance can be quite cost-prohibitive to providers and affect their ability or willingness to adopt telehealth. Additionally, telehealth-focused remote prescribing laws vary from state-to-state while prescribing of controlled substances are limited by the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. The law generally prohibits prescribing of controlled substances through the internet without a valid prescription, which requires the prescriber to have conducted at least one in-person medical examination of the patient. Although the law includes a telehealth exemption, the exemption requires the originating site to be located at Drug Enforcement Administration (DEA)-registered clinic or hospital. In addition, state medical licensing boards may also limit the circumstances in which providers can prescribe controlled substances via telehealth. As illustrated above, the varying length and degree of Federal and state laws and regulations governing telehealth services is complex and may deter providers from entering into the telehealth service market.

Overall, the MACPAC report illustrates a positive outlook on telehealth’s integration into state Medicaid programs. However, in its recommendation to Congress, MACPAC did not outright push states to adopt telehealth into their Medicaid programs. Rather, the Commission continues to seek more research and collaborative studies among states to gain better insight and understanding of the effects of telehealth on access to care, quality, and cost of care of the Medicaid program.

One of the challenges to increasing Medicare coverage of telehealth services is amending the statutory language in the Social Security Act (42 U.S.C. § 1395m) to remove geographic and other limitations. The Congressional Budget and Impoundment Control Act of 1974 requires the Congressional Budget Office (“CBO”) to provide cost estimates of proposed legislation. These CBO scoring reports provide estimates on the spending and revenues associated with legislation, generally over the window of 10 years beyond the effective date of the legislation. Therefore, budgetary effects beyond the 10 year window from legislation (for example, aimed at preventing longer term health costs) would not be taken into account as part of the CBO scoring process. This limitation in the CBO scoring process is seen by proponents of expanding Medicare coverage of telehealth services as a significant inhibitor to passing transformative legislation because the CBO scores reflects the initial uptick in costs to the program from access to services without incorporating the total savings projected over the longer term of an individual’s lifespan.

A bipartisan group of senators introduced a bill (Preventive Health Savings Act, S. 2164) in November of 2017, that would affect how the CBO analyzes legislation related to disease prevention, which could have a positive impact on the CBO scoring expansion of Medicare coverage of telehealth services and affect the ability to move changes through the legislative process. A nearly identical bill (H.R. 2953) was introduced in the House of Representatives in the summer of 2017, the status of which is still pending.

The Preventive Health Savings Act would allow Congress to request a proposal be reviewed by the CBO for budgetary savings from preventive health services, beyond the existing 10 year window from legislation. As proposed in the bill, the CBO would be required to score proposals based on reviewing publicly available scientific studies of preventive health and preventive health services, which the legislation broadly defines as “an action that focuses on the health of the public, individuals and defined populations in order to protect, promote, and maintain health and wellness and prevent disease, disability, and premature death.” The bill also would allow the CBO to review the budget savings for preventive health services extending into an additional two decades beyond the traditional 10 year budget window beyond legislation.

Why is this important to telehealth? This bill, if passed into law, would require CBO to more accurately measure the benefits of preventive care. The U.S. incurs significant, but avoidable, costs related to the treatment of certain diseases and chronic care services, so preventive tools and services are beneficial as a means toward lowering such costs. Telehealth services are well suited to be used as tools that connect patients to their health care providers in order to prevent diseases from occurring or to help maintain health conditions in order to prevent existing conditions from worsening. However, the savings to an individual’s health care costs that are associated with disease prevention would not be measured to their full effect in a shorter term window, as compared to the longer term (i.e., 30 year) window that these bills propose.

Telehealth services offer health care providers the opportunity and the capability to reach broader Medicare beneficiary populations and to serve as disease prevention tools for these populations. Proponents of the bills believe that passage would allow the CBO to more accurately measure the financial savings associated with any legislation that is intended to broaden access by Medicare beneficiaries to telehealth services.

You need not spend much time reading the news to know that recent Hurricanes Harvey and Irma have disrupted the lives of tens of thousands of individuals, many of whom may already have behavioral health needs; however, the trauma caused by these recent natural disasters, and others, has created an immense need for additional behavioral and mental health services. For example, a 2012 study entitled “The Impact of Hurricane Katrina on the Mental and Physical Health of Low-Income Parents in New Orleans” reported elevated rates of incidence of Post-Traumatic Stress Disorder (“PTSD”), depression, and a need for mental health services for as much as 50 percent of the low-income population affected by Hurricane Katrina, which hit in August 2005. A Fortune Magazine article reported elevated incidences of PTSD, depression, and anxiety experienced by victims of Hurricane Sandy, which hit in October 2012. In the wake of Hurricane Harvey, some telehealth providers have offered free telehealth services to hurricane victims and a few behavioral health providers have established specific programs focused on providing access to behavioral health services. However, additional services are still needed to treat the long-term mental health needs of these victims.

Providers of health services, especially behavioral health services, who utilize telehealth technologies to treat and diagnose victims of natural disasters, should be acutely aware of certain limitations in state laws that may create liability associated with the services they are providing. Treating victims of natural disasters through telehealth technologies can be difficult because a treating provider must determine the patient’s home state and quickly assess how this may affect the provider’s ability to treat the patient; yet, answering this seemingly simple question can be extremely difficult given the uncertainty and displacement for many in the wake of a natural disaster. Consider the following examples involving Amanda, a Houston resident driven from her home by Hurricane Harvey who has decided to seek the services of a psychologist to deal with the significant emotional and psychological upheaval caused by the recent events:

  • Scenario #1: Amanda’s Houston home has been destroyed, so she purchases a new home in another state. In this scenario, a psychologist treating Amanda must be licensed to practice in the new state where Amanda now lives.
  •  Scenario #2: Amanda’s Houston home is damaged, but is not destroyed, so she plans to move back to Houston once the home has been repaired. In the interim, Amanda moves in with family located in Indiana. Ind. Code § 25-1-9.5-7(b) is fairly clear in that a “Telemedicine Provider Certification with the Indiana Professional Licensing Agency . . . [is required] before the provider may establish a provider-patient relationship or issue a prescription for an individual located in Indiana.” Thus, a psychologist treating Amanda must be licensed to practice in Indiana.
  •  Scenario #3: Amanda’s Houston home is damaged, but is not destroyed, so she plans to move back to Houston once the home has been repaired. In the interim, Amanda moves in with family located in West Virginia. W. Va. Code § 30-21-3 allows a psychologist to practice up to ten days per year without seeking licensure or providing any notice to the State. Therefore, Amanda could seek limited treatment from an out-of-state psychologist; however, the psychologist must become licensed in West Virginia if the repairs to Amanda’s home cannot be completed (and, thus, she does not move back to Houston) before her eleventh day of treatment. Please also note that this law pertains to psychologists, only; if Amanda seeks treatment from a psychiatrist or a therapist, different West Virginia laws and regulations may apply.

The question that must be addressed at the very onset of taking on a new patient, or learning that an existing patient has moved, is whether the provider is even permitted by law to treat the patient utilizing telehealth technologies. If the telehealth program through which the provider is treating the patient is only established in one or a few states, the provider may lack the proper professional licensure to provide treatment to patients who move, or even temporarily relocate, to a different state.  Some states, like Washington, have special temporary provisions that will allow a provider to treat patients residing in the state without requiring that the provider obtain a full and unrestricted license to practice; however, many more states do require that providers obtain full and unrestricted licenses to practice in the state before the provider may treat any patients who are residing in the state, even temporarily.  Some states, like West Virginia, may establish a “middle ground” by allowing for limited treatment of patients without having a full and unrestricted license to practice in the state.

Even if a physician has the proper professional licensure to treat a patient residing in a given state, the provider also must understand what the state requires the provider to do in order to establish a physician-patient relationship, as well as any limits placed on the provider’s ability to treat the patient using telehealth technologies under the state’s relevant laws. For example, in Arkansas, a physician-patient relationship may not be established through telehealth means.  Ark. Code Ann. § 17-80-118(e)(1) requires the treating telehealth physician to either already have a relationship with the patient or to act in concert with another provider who has established such a relationship with the patient.  Yet, the opposite is true in other states, including California, where a physician-patient relationship may be established through telehealth means to the extent that the physician can conduct an examination of the patient (utilizing telehealth technology) that is sufficiently comprehensive for the treatment being provided to the patient. Additionally, the treating physician must ensure that any medication she/he prescribes through telehealth encounters can be prescribed under the state’s remote prescribing laws. Most states require that an in-person visit has occurred between the physician and the patient before certain classes or schedules of drugs may be prescribed. This is further complicated by the fact that states often differ with regard to how they schedule these drugs. As a result, a physician may not be able to newly prescribe or help a patient maintain an existing prescription using certain prescription-only drugs, if the patient moves to a state with these types of restrictions in place.

In spite of these potential regulatory obstacles, behavioral health providers have tough choices to make between managing the potential risks of non-compliance with treating victims of natural disasters who can benefit greatly from having access to behavioral health services. Providers can consider options such as establishing questionnaires that request even temporary or part-time address information from patients, so that the providers have this information at the outset of their interactions with the patient rather than learning this information during the initial (or later) therapy sessions. Providers would then have the option to consult counsel or directly discuss the issue with state regulators, if the application of state laws of one possible “home state” could potentially limit or change how the provider would treat the patient, or to give providers the option of seeking a professional license from any additional states in order to provide services to such patients in a compliant manner.

Pursuant to the 21st Century Cures Act of 2016, Congress mandated the Medicare Payment Advisory Commission (“MedPAC”) to provide a report to Congress by March 15, 2018, in which MedPAC has been asked to answer the following questions:

  1. Under the Medicare Fee-for-Service program (Parts A and B), what is the current coverage of telehealth services?
  2. Currently, what coverage do commercial health plans offer for telehealth services?
  3. In what ways can the Medicare Fee-for-Service program adopt some or all the telehealth service coverage presently found in commercial health plans?

Earlier this month, at the MedPAC public meeting, the Commission presented a general summary regarding the first of these three questions, specifically the Medicare Fee-for-Service program’s current coverage of telehealth services. MedPAC examined four different aspects of the Medicare Fee-for-Service program that currently address coverage of telehealth services: (1) the Medicare Physician Fee Schedule; (2) other Fee-for-Service payment models within the Medicare program (e.g., inpatient / outpatient hospital services); (3) the Medicare Advantage program; and (4) the Centers for Medicare & Medicaid Innovation initiatives.

Medicare Physician Fee Schedule (“PFS”). Presently, Medicare PFS coverage of telehealth services is the most constrained because of the concern of overutilization from volume incentive. Unlike other fee-for-service models utilized by the Medicare program (e.g., MA program, CMMI initiatives) there is no associated cost risk to providers who utilize telehealth services under the Medicare PFS (i.e., no fixed payment, no cap constraints); therefore, the Medicare PFS contains comparatively strict parameters that must be met in order for Medicare to provide reimbursement for telehealth services. For example, the Medicare PFS only covers telehealth services that originate in rural areas and that are performed at one of several specific types of facilities. Furthermore, the Medicare PFS only will cover two types of telehealth modalities, two-way video (synchronous), and store-and-forward (asynchronous) technology, and the latter of these only if services are provided to Medicare beneficiaries residing in Alaska or Hawaii. The Medicare PFS has designated telehealth FFS codes for limited physician services, including office visits, mental health services, substance abuse treatment, and pharmacy management services. Under the Medicare PFS telehealth services also may be included in larger fixed payments that resemble remote patient monitoring activities (e.g., transitional care management services, chronic care management services) as well as through bundled payments for such things as the 90-day global surgery bundle and payments for cardiac monitoring devices. Interestingly, because some of these services (despite being provided via telehealth modalities) are not part of the official Medicare PFS list of telehealth FFS codes, they are not constrained by the current Medicare PFS rules and requirements for provision of telehealth services (e.g., originating site rules).

Other Medicare Fee-For-Service (“FFS”) Payment Models. Within the Medicare program, various other FFS payment models exist for provision of services to beneficiaries, with respect to services including inpatient/outpatient hospital services, skilled nursing facilities (“SNFs”), inpatient rehabilitation facilities (“IRFs”), dialsysis facilities, and long-term acute care hospitals (“LTACHs”). In contrast to the Medicare PFS rules and requirements for provision of telehealth services, Medicare coverage of telehealth services under these other Medicare FFS payment models has been more flexible because both providers and health plans bear risk if the cost of a beneficiary encounter exceeds the fixed payment for that encounter. Under these Medicare FFS payment models, providers are incentivized to use telehealth services only if doing so would reduce the cost of providing the services. Although under most of these other Medicare FFS payment models, providers may include the costs associated with telehealth services costs on their annual cost reports as allowable costs, there are some exceptions to this general rule (specifically, home health agencies and hospice agencies) that may not include these costs on their annual cost reports.

Medicare Advantage (“MA”) Program. Under the MA program, payments to health plans are capitated and health plans must provide coverage for any telehealth services that are covered under the existing Medicare PFS, so as a result coverage for these services under the MA program also is constrained by the same PFS rules and regulations described above. However, by contrast, the MA program extends to these health plans the flexibility to finance coverage of additional telehealth services through a supplemental premium or their rebate dollars. Although the telehealth services offered by these health plans (as supplemental benefits) may not be built into the bids these health plans submit to the MA program, any savings from the health plans’ use of such services can be captured by the health plans in their required reporting to CMS. Similar to FFS, there is an incentive to use telehealth service if it reduces costs.

Center for Medicare and Medicaid Innovation (“CMMI”) Initiatives. Through the CMMI, selected pilot programs have been given waivers by CMS to incorporate the use of telehealth services beyond what is currently permitted through the Medicare PFS rules and regulations. For example, some accountable care organizations (“ACOs”), known as the “Next Generation ACOs”, have received CMMI waivers to use telehealth services in urban settings and/or beneficiaries’ homes (contrary to current Medicare PFS coverage rules and requirements). Other ACOs have received CMMI waivers allowing physicians to receive Medicare FFS payment rates for telehealth visits while the ACO remains at risk for beneficiaries’ total spending. Many of the telehealth initiatives made possible by these CMMI waivers have arguably created greater incentive for Medicare providers to utilize telehealth service if they can have the effect of curbing associated costs.

At the recent meeting MedPAC also reported, based on the limited data currently available, on beneficiary utilization of telehealth services under the Medicare PFS. According to MedPAC, in 2016 approximately 0.3 percent of all Medicare beneficiaries (for Part B) utilized telehealth services, amounting to approximately $27 million for just over 300,000 encounters in total. MedPAC noted that the most common telehealth services utilized by Part B beneficiaries in 2016 were basic office visits, mental health services, and follow-up care. Additionally, approximately 2,000 ESRD-related visits and 2,000 telestroke visits occurred in 2016. Although this utilization was comparatively low, MedPAC reported an increased use of telehealth services, mostly in subsequent nursing care, psychotherapy, and pharmacological management. According to MedPAC, between 2014 and 2016 the number of telehealth visits per 1,000 beneficiaries increased by approximately 79 percent, compared to an average 3 or 4 percent increase for all Medicare physician services within that same two-year period. Also, MedPAC noted that telehealth users were disproportionately dually eligible (for Medicare and Medicaid), located in rural areas, and dealing with chronic care conditions (e.g., mental health conditions, diabetes, chronic obstructive pulmonary disease).

MedPAC will continue its examination of telehealth services by addressing the latter two questions in the following two months, with the intention to review the entirety of its findings in January 2018 (prior to publishing the March 2018 report). Although MedPAC’s upcoming meetings most likely will focus (with respect to telehealth services) on its June 2016 report findings, the Commission hopefully will start to combine its current examination of telehealth services with its June 2016 recommendations to policymakers regarding telehealth (e.g., expanding Medicare PFS coverage of telehealth services).

Updates to OIG FY 2017 Work Plan

The United States Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) recently updated its FY 2017 Work Plan. Traditionally, OIG’s annual Work Plan has given health care providers a preview of OIG’s enforcement priorities. With the OIG now making updates to its Work Plan on a monthly basis, providers stand to gain even more insight into how the focus of OIG is constantly shifting in order to assist in the identification of significant compliance risk areas.

In this most recent set of updates to the FY 2017 Work Plan, OIG announced that it will conduct a review of Medicare claims paid for telehealth services in FY 2017. Specifically, OIG is interested in reviewing claims for telehealth services provided at “distant sites” (i.e., the location of the provider of the telehealth service) that do not correspond with claims from an “originating site” (i.e., the location of the patient). By undertaking this review, presumably OIG seeks to verify that providers of telehealth services are: (1) appropriately rendering these services to Medicare beneficiaries based on current reimbursement rules under Medicare for provision of telehealth services (i.e., the beneficiary is at a valid originating site when receiving the telehealth service, which under current Medicare rules does not include a beneficiary’s home), and (2) not submitting fraudulent claims for telehealth services (i.e., services delivered outside of Medicare’s coverage and reimbursement scope). OIG’s review of these claims may demonstrate the need to update Medicare’s outdated coverage and reimbursement provisions for telehealth services.

Medicare’s Current Coverage of and Reimbursement for Telehealth Services

Compared to ever-expanding coverage of and reimbursement for telehealth services in individual states, as well as the private insurance market, Medicare Part B beneficiaries currently have limited access to telehealth services due to the following restrictions:

  1. Medicare beneficiaries only have access to telehealth services transmitted using an “interactive 2-way telecommunications system (with real-time audio and video).” This definition excludes three frequently used modalities used by providers to deliver telehealth services: (a) store-and-forward technology (with the limited exceptions of CMS demonstration projects ongoing in Alaska and Hawaii), (b) remote patient monitoring (“RPM”) services, and (c) mobile health / wearable technology.
  2. Medicare confines telehealth coverage to “rural health professional shortage area[s].” This geographic restriction is federally defined.
  3. Medicare beneficiaries only may receive telehealth services while physically situated at one of eight “originating site[s],” none of which include the patient’s home—those living in geographically-restricted areas are still obligated to access a medical originating site in order to activate Medicare coverage.
  4. Only eight types of practitioners may deliver the telehealth services to Medicare beneficiaries, and must do so from a qualified “distant site.”
  5. The Centers for Medicare & Medicaid Services (“CMS”) publishes a limited number of HCPCS and CPT codes for telehealth services, and while this universe of codes has gradually increased over time, most of these codes are geared towards reimbursement for behavioral health services delivered through telehealth.

Current Legislative Efforts in Congress

In recent years, federal lawmakers have been working to lessen the constraints on Medicare Part B coverage of and reimbursement for telehealth services.

In August 2016, HHS published a Report to Congress on “E-Health and Telemedicine.” In this report, HHS expressed its support for telehealth expansion and its importance in the health care industry: “[T]elehealth holds promise as a means of increasing access to care and improving health outcomes.” Congress has seemed to take note. In the 2017–2018 legislative session, four key bills have been introduced that, if passed, would improve coverage of and reimbursement for telehealth services under Medicare:

  • The CHRONIC Care Act of 2017 (S. 870) would make four key changes to Medicare: (1) provide coverage and reimbursement for RPM delivery of home kidney dialysis assessments; (2) provide nationwide coverage and reimbursement for “telestroke” consultations (not just those that occur in rural hospitals or other originating sites); (3) eliminate the geographic restriction of an originating site for Accountable Care Organization (“ACO”) beneficiaries, thus allowing patients to receive home telehealth services; and (4) allow Medicare Advantage plans to offer telehealth benefits in annual bid amounts, instead of using rebate dollars to pay for telehealth as a “supplemental service.” The CHRONIC Care Act recently received a favorable, budget neutral Congressional Budget Office (“CBO”) score—alleviating a traditionally difficult roadblock for telehealth legislation.
  • The Medicare Telehealth Parity Act of 2017 (H.R. 2550) would provide an incremental expansion of coverage for telehealth services under Medicare by expanding the number of acceptable geographic locations for telehealth coverage under three “phases.”
  • The CONNECT for Health Act of 2017 (H.R. 2556) includes provisions that would expand coverage and reimbursement of telehealth services for (1) ACO enrollees, (2) individuals receiving kidney dialysis therapy, (3) stroke patients, and (4) RPM services for beneficiaries needing chronic care and would lift restrictions on telehealth for mental health services.
  • The HEART Act (H.R. 2291) aims to increase Medicare coverage of telehealth services, including coverage and payment for store-and-forward services delivered to “any telehealth services that are furnished from a distant site, or to an originating site, that is a critical access hospital . . ., a rural health clinic . . ., or a sole community hospital” and for home-based monitoring of congestive heart failure and chronic obstructive pulmonary disease. These three bills have not yet been scored by the CBO.

While it remains to be seen whether any of these bills (or any others) will become law, the level of legislative activity still is promising—and particularly so in conjunction with HHS’s support for telehealth—that expansion of telehealth coverage and reimbursement under Medicare can make greater strides toward improving access to these services for Medicare beneficiaries.

Added to this, OIG’s recent updates to the FY 2017 Work Plan to include a review of telehealth reimbursement claims under Medicare may further accelerate this process if OIG identifies any pertinent potential risk areas related to provision of telehealth services.

This post was written with assistance from Matthew Sprankle, a 2017 Summer Associate at Epstein Becker Green.

Private payer parity laws generally require private insurers and health maintenance organizations to cover, and in some cases also reimburse, for the provision of telehealth services in the same manner and at the same level as comparable in-person services. These laws are enacted at the state level, creating a complicated framework within which insurers must operate. At this point, most states have implemented some form of private payer parity law, although the specifics of each state’s laws vary. One of the most common is a rule such as Montana’s, which requires insurers to offer coverage for health care services provided by a health care provider by means of telemedicine if the services are otherwise covered by the plan. Some states, like Iowa, only mandate parity within their Medicaid programs without extending the mandate to private payers. Other states only require parity for certain types of services, like mental health services in Alaska. Lastly, Illinois and Massachusetts, require parity only when insurers opt to provide telehealth services.

In the 2017 legislative session thus far, two more states have enacted private payer parity laws. In April, North Dakota enacted its law, SB 2052, which prohibits policies that provide health benefits coverage to be delivered, issued, executed, or renewed that do not provide coverage for health services delivered by means of telehealth. Although SB 2052 does not require reimbursement for telehealth to match in-person services, it does permit establishing reimbursement for telehealth services through negotiations conducted by the insurer with the health services providers in the same manner as used for in-person services. At the end of June, New Jersey passed its law, requiring health benefits plans to “provide coverage and payment for health care services delivered to a covered person through telemedicine or telehealth, on the same basis as, and at a provider reimbursement rate that does not exceed the provider reimbursement rate that is applicable, when the services are delivered through in-person contact and consultation in New Jersey.” Pennsylvania’s bill, prohibiting a health insurance policy or ancillary service plan from excluding a health care service for coverage solely because the service is provided through telemedicine, is still pending.

Recent efforts in other states to enact telehealth private payer parity laws have not been as successful. A number of parity bills died in the last legislative session, including in Iowa, Kansas, Idaho, and Massachusetts. A bill in Florida that would have created tax credit for health insurers and health maintenance organizations that cover telehealth services also failed. At present, 15 states do not yet mandate private payers to cover and reimburse telehealth services at the same level as in-person health care services. In addition to the aforementioned, Alabama, Illinois, North Carolina, Ohio, South Carolina, South Dakota, Utah, Wisconsin, West Virginia, and Wyoming all lack such laws or regulations.

We continue to track the progress of bills in state and federal legislatures. If you have questions on coverage and reimbursement for telehealth services, please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

Telehealth continues to be a hot topic of state and federal legislatures. Texas, for example, recently joined the rest of the states in no longer requiring initial in-person visits before being able to provide telehealth services.

The Texas legislature enacted the major telehealth bill SB 1107 on May 19, 2017, and the governor signed the bill into law shortly thereafter on May 27, 2017. As reported in our prior post, Texas had considered that, if passed, this telehealth bill would allow patient-physician relationships to be established via telemedicine without requiring an initial in-person visit. Prior guidance from Texas Medical Board required an in-person physician-patient interaction before a visit via telehealth, specifically in prescribing medication. The Texas Medical Board’s telemedicine FAQs are being revised as a result of this enacted law.

This law’s enactment would also effectively bring to an end the years long battle between a telehealth provider and Texas Medical Board. In 2015, a telehealth provider brought legal action against the Texas Medical Board and its telehealth restrictions. This litigation was twice stayed to allow for such a resolution to occur.

Additionally, the Federal Trade Commission was investigating the Texas Medical Board for possible antitrust violations due to its guidance that restricted the practice of telemedicine and telehealth in Texas. However, on June 21, 2017, the Federal Trade Commission announced that it will close its investigation into the Texas Medical Board as a result of the Texas legislatures enacting the law that overrode the board’s telehealth restrictions.

This Texas telehealth law is important because of the large telehealth market that Texas represents. The passage of this law removes the hurdle to allow telehealth providers to start operating or expand operations in the state with the second largest population in the nation.

We continue to track the progress of bills in state and federal legislatures. If you have questions on the provision of telehealth services- in Texas or any other state- please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.