Telehealth and National Medicaid/Medicare Policies

The COVID-19 pandemic has helped educate many physicians and patients about the benefits of telehealth – offering medical consultations through the Internet. The primary method for conducting consultations is through video. Many states have enacted some laws to regulate how these procedures should be done, who can give advice, from which locations the advice can be given, and other conditions. Medicare and Medicaid have their own rules and regulations for reimbursement for telehealth services.

Every state has its own different telehealth policies and different laws. In additional state medical boards and specialty practices are also developing their own principles and guidelines.

While many policies have been expanded during the pandemic to reduce the risk of infection, medical providers and telehealth medicine companies should not expect that these expansions will be automatically extended when the pandemic emergency ends.

Experienced healthcare lawyers advise developers and medical practices on the current status of the telehealth laws for their state to help address their compliance issues – along with business practice issues and medical service issues.

Telehealth and Medicaid

According to the Center for Connected Health Policy (CCHP), every state approaches telehealth in a different way. Medicaid, enacted in 1965 under the Johnson Administration, is a medical aid entitlement program for low-income families. The program is funded by federal and state governments though each state has the ability to design many of its own features.

The individual states can provide reimbursement under Medicaid – provided certain federal standards of quality of care and efficiency are met. States do not need to submit a state plan amendment (SPA) when deciding how to reimburse for telehealth services – provided the reimbursement process is the same that is used for face-to-face conferences.

Some of common denominators and key findings for Medicaid policy in the fall of 2020 are the following:

• All 50 states and Washington DC provide reimbursement for some type of live video in Medicaid fee-for-service
• 18 states provide store-and-forward reimbursement. Four more states may announce store-and-forward Medicare reimbursement soon
• 21 states have authorized remote patient monitoring (RPM) reimbursement. Two others may approve RPM soon.
• 16 states “limit the type of facility that can serve as an originating site.”
• 32 states offer a facility fee/transmission fee if telehealth is used

Telehealth and private payers

Currently, federal law doesn’t require that private payer insurance plans reimburse for telehealth services – though may plans do authorize such reimbursement. However, 43 states and Washington DC have laws on private payer telehealth reimbursement. Some of these states mandate reimbursement while others mandate that any reimbursement be the same as face-to-face reimbursement.

Regulations on telehealth also vary widely from state to state. The most restrictive regulations are limitations on cross-state licensing of health professionals. Many state health medical boards are developing new standards for health practitioners in their respective states.

2020 telehealth legislation

According to CCHP, 200 new telehealth-related bills were introduced in state legislatures in 2020 – most of which address:

• Medicaid reimbursement
• Private payer reimbursement
• COVID-19 expansions
• Telehealth professional board standards
• Cross state licensing

Some bills address telehealth pilot programs for public programs.

Connectivity and Net Neutrality

Part and parcel of telehealth services is the ability to connect physicians with patients and other healthcare connection connections. Net neutrality means that internet service providers won’t purposely slow down, block, or charge more for access to specific websites or content. The aim of net neutrality is that everyone and everything should be treated equally.

There are pro and con arguments about how net neutrality affects telehealth. The Federal Communications Commission (FCC) adopted principles for net neutrality in 2014 which were struck down by the courts in 2014. Since then, the federal net neutrality principles are in a state of flux. California recently passed its own net neutrality law. While this law is being challenged by the US Department Justice, that challenge may be withdrawn when the Biden administration starts.

Credential and privilege to practice issues

Credentialing is the authorization of a health practitioner to provide hospital services based on a review and verification of the practitioner’s qualifications. Once a physician or other health provider is properly credentialed, the hospital then uses a privilege process to assess if the health provider is competent in a specific type of care.

Generally, health providers who treat patients through telehealth services must go through a credentialing and privileging process in order to provide telehealth services to a distant hospital – even if they are not physically present at that hospital. The credential and privilege process can be very timely and costly. Hospitals do need to make credentialing a priority if the hospitals have limited access to specialists. Without the credential and privilege process, patients will need to travel far distances for specialty care.

Both specialists, hospitals, states and healthcare agencies such as the Centers for Medicare & Medicaid Services (CMS) are seeing how helpful telehealth services are for providing distant services.

In the past hospitals used “privilege by proxy” standards of The Joint Commission (TJC), to expedite the approval process. CMS, however, views the TCJ proxy privileging standards as “being in conflict with their Medicare Conditions of Participation (CoPs). CMS, thus, invalidated the TJC process making it difficult for many hospitals, including those in rural and small locations, to hire specialists – since hiring on-site specialists is often too expensive – if the hospital can even find a local specialist.

In July 2011, CMS approved regulations to use a credentialing-by-proxy process similar to the TJC method. It’s optional for the hospital to use the process – meaning the hospital can use either the proxy process or the standard complete credentialing and privileging process. The CMS proxy process requires that:

• The hospital and physician must have a written agreement
• The distant-site hospital is a Medicare-participating hospital or telemedicine entity
• The telehealth provider has privileges at the distant-site hospital
• “A current list of the telehealth provider’s privileges is given to the originating-site hospital”
• “The telehealth provider holds a license issued or is recognized by the state in which the originating-site hospital is located”
• “The originating-site hospital has an internal review of the telehealth provider’s performance and provides this information to the distant-site hospital”
• “The originating-site hospital must inform the distant-site hospital of all adverse events and complaints regarding the services provided by the telehealth provider”

Hospital bylaws must also be met.

Telehealth and Medicare

Medicare is the federal health insurance program for:

• People 65 and older
• People under 65 who have a disability
• People with end stage renal disease

Medicare generally reimburses for telehealth services provided certain conditions are met.

Reimbursement by Medicare requires that the services be delivered through a live video. CMS does not approve reimbursement for store-and-forward – except for the use of store-and-forward in Alaska or Hawaii. Medicare reimburses for some remote services which normally aren’t classified as “telehealth services.

What services qualify as telehealth services?

The US Department of Health and Human Services (HHS), on a yearly basis, reviews submissions for new telehealth-delivered services to be approved (for Medicare). Submissions are allowed from:

• Providers
• Advocacy organizations
• Other interested parties

Approval by CMS of a submission requires that the proposed telehealth service meet the requirements of one of the following categories:

• Category 1. These are services which are similar to approved Medicare telehealth services such as:
  • Professional consultations
  • Visits to an office
  • Psychiatry services

CMS will review:

• • The similarities between the new service and existing services
  • “Interactions among the beneficiary and the practitioner at the distant site and, if needed, the tele presenter”

• Category 2. Services which are not similar to currently approved Medicare telehealth services. The review will be based on several factors including “whether the use of technology to deliver the service produces a demonstrated clinical benefit to the patient.”

Services which are approved normally are eligible for reimbursement on January 1 of the following year.

Which healthcare professionals does Medicare permit authority to provide telehealth-services?

The covered professionals include:

• “Physicians
• Nurse practitioners
• Physician assistants
• Nurse midwives
• Clinical nurse specialists
• Certified registered nurse anesthetists
• Clinical psychologists and clinical social workers (these professionals cannot bill for psychotherapy services that include medical evaluation and management services)
• Registered dietitians or nutrition professionals.”

Medicare and geography

Medicare defines the originating site as the place where the patient is located at the time the telehealth services are provided. Medicare is primarily interested (except for the pandemic) in using telehealth services for rural areas. The originating site must be in:

• A “Health Professional Shortage Area (HPSA) as defined by Health Resources and Services Administration (HRSA) or
• In a county that is outside of any Metropolitan Statistical Area (MSA) as defined by the US Census Bureau.”

Starting in 2014, CMS updated its definition of a rural HPSA.

Which facilities are eligible to receive Medicare telehealth services?

Original sites, in addition to the rural restrictions, must be one of the following types of entities.

• Provider offices
• Hospitals
• Critical access hospitals
• Rural health clinics
• Federally qualified health centers
• Skilled nursing facilities
• Community mental health centers
• Hospital-based or critical access hospital-based renal dialysis centers

Are there exceptions to the geography and type of facility requirements – for Medicare?

CMS has authorized a few exceptions (telehealth services that should qualify for reimbursement) for treatment of the following medical disorders – effective January 2019.

• End Stage Renal Disease
• Acute Stroke Treatment
• Treating Individuals with Substance Use Disorders (SUDs) or co-occurring mental health disorders

Medicare and payment for remote communication technology

Starting in January 2019, CMS will reimburse for some remote communication services that don’t fall into the category of “Medicare telehealth services.” This means some for the limitations that generally apply to telehealth services don’t apply to these services. Developers and health practitioners should be aware of these additional services that may qualify for Medicare reimbursement for business purposes and for medical purposes:

• Brief communication technology-based service (or “virtual check-ins”). This category covers patient-doctor reviews that aren’t face to face – where the purpose of the communication is just to determine if an office visit or other service is required. This category/service is just available for health practitioners who provide Evaluation/Management (E/M) services. The communication can be through a live video or a phone call.
• Remote evaluation of pre-recorded patient information. Here the patient is providing information that is prerecorded through some form of image/video technology. Again, the purpose is to determine if an office visit or other service is needed. This technology can only be used for established patients.
• Interprofessional internet consultation. This technology is for a professional-to-professional communication. The service can only be used by practitioners who “can independently bill Medicare for E/M visits.” The communication can be by phone call or a “live or asynchronous internet consultation.” Both providers could be reimbursed.

Other telehealth services that need review by an experienced healthcare compliance lawyer include:

• Online prescriptions
• Professional licensure boards
• Physicians also need to perform their services competent

The laws on telehealth are evolving. An experienced healthcare lawyer can help can keep current with the changes. Medicare and Medicaid have their own rules for reimbursement. Physicians and developers who fail to comply with these rules may not be reimbursed for their services or investments. Practitioners and health companies may also be subject to fines and other consequences. The rules involve many core issues such as the ability to practice in different states, where the conservations should take place, who is eligible for reimbursement, and what services are and aren’t considered telehealth services.