2023: New Federal Developments

There were no new federal developments in the last month.

2023: New State-Level Developments

Payment Parity: Permanent State Laws and Statutes

Payment Parity requires that health care providers are reimbursed the same amount for telehealth visits as in-person visits. During the COVID-19 pandemic, many states implemented temporary payment parity through the end of the public health emergency. Now, many states are implementing payment parity on a permanent basis. As portrayed in Figure 1, as of July 2023, 21 states have implemented policies requiring payment parity, 8 states have payment parity in place with caveats, and 21 states have no payment parity.

_{Figure 1. Map of States With Laws Requiring Insurers to Implement Payment Parity (as of July 2023)}

2023: Federal Developments More than One Month Old

For a list of Federal Developments from 2020-2022, please see here.

Executive Branch Activity

Legislative Activity

Other Information of Interest

For the full list of other activities and updates from 2020-2022, please see here.

In February 2023, the American Medical Association CPT Editorial Panel added 17 new CPT codes that can be used to report telemedicine E/M office visits. The Panel also removed three codes for billing telephonic E/M office visits. These changes will be effective January 2025.

The post Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 appeared first on mTelehealth.

Tuesday, June 6, 2023

Telehealth experienced massive growth during the COVID-19 pandemic, due in no small part to various regulatory and reimbursement policies that federal agencies implemented following a declaration by the US Department of Health and Human Services (HHS) in early 2020 that the COVID-19 pandemic was a public health emergency (PHE). Although the PHE officially ended on May 11, 2023, several telehealth flexibilities remain available to health care providers and their patients.

On the cusp of the PHE’s termination, HHS issued a fact sheet on May 10, 2023, noting some key telehealth flexibilities that will continue post-PHE. They include flexibilities in Medicare coverage for telehealth services, tele-prescribing of controlled substances, and compliance with the privacy and security requirements under the Health Insurance Portability and Accountability Act (HIPAA).  

Expanded Medicare Coverage of Telehealth Services to Extend Through 2024

Prior to the PHE, Medicare limited coverage of telehealth services largely to patients who were physically present within a hospital or other facilities located in certain rural areas. Medicare also required a telehealth encounter to occur through an interactive audio-video system, thus excluding coverage for services delivered via audio-only devices.

During the PHE, HHS relaxed those requirements, using authority under the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The waiver of the Medicare coverage restrictions contributed to a dramatic increase in utilization of telehealth services, with Medicare beneficiaries using 88 times more telehealth services in 2020 than in 2019.

The Consolidated Appropriations Act of 2022 extended many of the Medicare telehealth flexibilities for 151 days following the end of the PHE. More recently, the Consolidated Appropriations Act of 2023 decoupled these flexibilities from the PHE and will continue expanded Medicare telehealth coverage through 2024. Accordingly, as the HHS fact sheet notes, through December 31, 2024, Medicare beneficiaries may:

• Access telehealth services in both rural and urban areas;
• Receive treatment via telehealth at home rather than travel to a health care facility; and
• Use audio-only technology for certain Medicare-covered telehealth visits if unable to use both audio and video, such as a smartphone or computer.

Temporary Flexibilities for Tele-Prescribing of Controlled Substances Continue Amid Proposed Rulemaking

Under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, a physician or other health care practitioner may, with certain exceptions, prescribe controlled substances to a patient only after conducting an in-person evaluation of that patient. Several exceptions to the in-person medical evaluation requirement are specifically tied to the statutory definition of the “practice of telemedicine” (21 U.S.C. § 802(54)). These exceptions, however, are narrow and of limited utility, particularly for telemedicine arrangements in which the patient receives services at home and is unable to obtain in-person care from the prescribing practitioner.

One telemedicine-related exception allows practitioners to prescribe controlled substances during a PHE. During the COVID-19 PHE, this exception permitted prescribing of controlled substances to patients via a telemedicine modality, regardless of whether the practitioner had first conducted an in-person evaluation (and irrespective of whether the prescription was for treatment for COVID-19). While this flexibility may have promoted access to care, it also presented prescribers of controlled substances with the potentially daunting task of conducting in-person evaluations on all of their patients whose treatment began via telemedicine during the PHE and continued after the PHE.

Yet, this scenario did not come to pass. Just days before the PHE terminated on May 11, 2023, the US Drug Enforcement Agency (DEA), in concert with the Substance Abuse and Mental Health Services Administration (SAMHSA), issued a temporary rule extending the telemedicine flexibilities for prescribing controlled substances during the PHE. Under the rule, practitioners may continue to tele-prescribe controlled substances without having to conduct an in-person evaluation of the patient during the six-month period from May 11, 2023, to November 11, 2023. For any practitioner-patient relationships that have been or will be established on or before November 11, 2023, practitioners have an additional one-year grace period through November 11, 2024, during which no in-person evaluation is required.

In addition to giving practitioners more time to conduct in-person evaluations, the temporary rule gives DEA and SAMHSA more time to review the record number of 38,369 comments the agencies received in response to two related March 2023 notices of proposed rulemaking. The first proposed rule would permanently modify DEA’s telemedicine regulations to permit a practitioner to tele-prescribe an initial prescription of no more than 30 days’ supply of a non-narcotic Schedule III through V controlled substance to a patient whom the practitioner has not evaluated in person. The second proposed rule would impose similar requirements for tele-prescribing of buprenorphine, a narcotic for opioid use disorder.

OCR Offers Transition Period Following Expiration of HIPAA Telehealth Policy

As a result of telehealth involving the transmission of patient-identifying information, telehealth providers and the telehealth platforms through which they provide services ordinarily must comply with HIPAA requirements governing the privacy and security of protected health information. To facilitate the sudden and large-scale pivot to telehealth during the PHE, the HHS Office for Civil Rights (OCR) issued a Notification of Enforcement Discretion relating to “telehealth remote communications” and HIPAA compliance. As we discussed in a prior alert, that enforcement policy assured that OCR would not impose penalties for HIPAA non-compliance during the PHE against health care providers in connection with the “good faith provision of telehealth” using a remote communication technology that allows only the intended parties to participate in the communication.

As it was directly linked to the PHE declaration, OCR’s Notification of Enforcement Discretion terminated with the PHE on May 11, 2023. However, OCR announced a 90-day transition period during which it will continue to exercise enforcement discretion as provided in the telehealth notification. During this time, OCR expects health care providers to “adjust their telehealth practices to come into compliance” with HIPAA. Such compliance efforts may include, for example, entering into business associate agreements with telehealth technology vendors and updating policies and procedures.

OCR is expected to issue additional guidance on telehealth remote communications to assist health care providers during the post-PHE transition period, which is scheduled to end August 9, 2023. Thereafter, covered entities and their business associates are subject to enforcement actions by OCR if their telehealth practices do not comply with HIPAA requirements.

Navigating the Post-PHE Environment

For health care providers and patients who grew accustomed to accessing telehealth during the PHE, the continuation of certain telehealth flexibilities following termination of the PHE is welcome news. At the same time, stakeholders should be mindful that the extension of these policies is temporary. As they plan for the eventual termination of pandemic-era telehealth flexibilities, interested parties should remain vigilant for additional regulatory guidance and developments from DEA, OCR, and other agencies, as well as legislation in Congress that may make federal telehealth reforms during the PHE permanent.

The post Telehealth Flexibilities Continue After End of COVID-19 Emergency appeared first on mTelehealth.

2023: New Federal Developments

2023: New State-Level Developments

Payment Parity: Permanent State Laws and Statutes

Payment Parity requires that health care providers are reimbursed the same amount for telehealth visits as in-person visits. During the COVID-19 pandemic, many states implemented temporary payment parity through the end of the public health emergency. Now, many states are implementing payment parity on a permanent basis. As portrayed in Figure 1, as of May 2023, 21 states have implemented policies requiring payment parity, 7 states have payment parity in place with caveats, and 22 states have no payment parity.

_{Figure 1. Map of States With Laws Requiring Insurers to Implement Payment Parity (as of May 2023)}

2023: Federal Developments More than One Month Old

For a list of Federal Developments from 2020-2022, please see here.

Executive Branch Activity

Legislative Activity

The post Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 (UPDATED) appeared first on mTelehealth.

March 09, 2023 – The COVID-19 pandemic spurred telehealth use to new heights, with policy changes and flexibilities enacted at the state and federal levels supporting the rapid integration of telehealth into routine care delivery. But now, with the public health emergency ending on May 11, lawmakers are evaluating how telehealth policy needs to evolve to continue supporting the new normal in healthcare.

Various pieces of legislation have been introduced at the federal level to solidify telehealth policy, but many have yet to be voted on. Telehealth proponents scored a win when telehealth flexibilities for Medicare beneficiaries were included in the 2022 year-end spending bill, with provisions extending pandemic-era telehealth and hospital-at-home waivers for two years.

At the state level, telehealth policies have evolved quickly, creating a patchwork of laws governing virtual care. But these telehealth policy changes were largely tied to states’ public health emergency declarations. As these expired, many states only temporarily extended telehealth flexibilities, leaving the future of state telehealth policy unclear.

“We’re beginning to watch some of those states that might have provided a one-to two-year temporary extension of some of their public health emergency waivers as they’re beginning to analyze costs and quality and utilization,” said Ben Steinhafel, director of policy and external affairs at the Center for Telehealth & e-Health Law (CTeL), in a phone interview. “There will be a lot of opportunity in the coming years at the state level, as some of those one-to two-year telehealth extension policies are beginning to sunset.”

Steinhafel, along with four telehealth policy experts, spoke with mHealthIntelligence about state telehealth policy, how it has evolved over the past three years, and what it could look like in the year ahead.

STATE TELEHEALTH POLICY DURING THE PANDEMIC

Telehealth policy at the state level has changed rapidly over the past few years as COVID-19 cases surged and fell.

“At the highest level, I think we’ve shifted from policy issues related to questions like, ‘Is telehealth covered?’ or ‘In which locations can telehealth be provided?’ to a kind of more advanced set of policy issues around what will coverage and reimbursement look like for non-video modalities? And how are we actually paying for really specific types of services and how do we enable providers to practice across state lines, but still maintain an ability for the state medical boards to play the role that they have,” said Jared Augenstein, managing director of Manatt Health Strategies, in a phone interview.

One of the most significant changes to state telehealth policy amid the pandemic has been growing payment parity, that is, reimbursing services equally whether they are provided via telehealth or in-person. According to Augenstein, 21 states now have payment parity policies compared to about 10 in the late 2010s.

This is a major shift from pre-pandemic telehealth policy. Before the pandemic hit, coverage parity among states was fairly common, said Mei Kwong, executive director of the Center for Connected Health Policy, in an email. Coverage parity refers to payers covering the same services, whether they are delivered via telehealth or in-person. But this does not guarantee the services will be covered at the same payment rate. 

Now, with states moving toward payment parity, many are changing private payer laws to require the same reimbursement for virtual and in-person care, she said.

Another significant change in state telehealth policy relates to physician licensure.

State governments decide both who is licensed to deliver care within state borders and the board of medical professionals to whom the healthcare professional will be accountable, noted Kyle Zebley, senior vice president of public policy at the American Telemedicine Association (ATA) and executive director of ATA Action, in a phone interview.

During the pandemic, many states adopted licensure compacts allowing medical professionals to practice virtually across state lines, he said. These compacts covered various types of providers, including physicians, nurses, physical therapists, and psychologists.

But even though there was an uptick in the adoption of licensure flexibilities, there were signs of a return to pre-COVID licensure rules last year.

“In 2022, most states had ended their state of public health emergency, which is, for the most part, what those flexibilities were tied to,” Augenstein said. “And I think now only seven states have any sort of ongoing telehealth licensure flexibility.”

Alongside licensure flexibilities, states revised Medicaid policies to expand the list of providers who could be reimbursed for providing services via telehealth. The provider lists were expanded to include physical therapists and occupational therapists, Kwong said.

Not only that, but Medicaid programs also started reimbursing for care provided in the home supported by virtual care technologies.

“While before some Medicaid programs did allow some narrow exceptions for telehealth in the home, we’re seeing more Medicaid programs expand or adopt home telehealth policies,” she said.

Audio-only telehealth also experienced a significant boost from state policy changes in the last few years. According to a report from the Center for Connected Health Policy (CCHP) released last October, the Medicaid programs of 34 states and the District of Columbia reimburse for audio-only telehealth services.

“Prior to COVID-19, the use of audio-only would not have even been a part of the conversation for telehealth reimbursement,” said Kwong. “That’s been one, if not the most, significant policy change so far.”

STATE TELEHEALTH POLICY IN 2023

The widespread changes to state policy undoubtedly spurred the adoption and use of telehealth across the country. But with many of these changes tied to states’ public health emergency declarations — several of which have ended — states must decide what telehealth policy will look like moving forward.   

As discussed above, policies around cross-state licensure have been allowed to expire in certain states, suggesting a pull-back from pandemic-era flexibilities. But other policies, like payment parity, will likely see continued support at the state level.

Audio-only telehealth also appears to be on solid ground, particularly with ongoing broadband and internet connectivity issues that prevent people, especially those living in rural areas, from accessing video-based care.

“In many cases, there are still 20 to 30 million Americans who don’t have access to broadband internet, and so really can’t participate in a video visit,” said Augenstein. “And in many cases from their home at least, audio-only is the only option… While the broadband access and affordability problem will hopefully get solved over the next few years, audio-only is a modality that more people are able to access. And so I expect to continue to see policy-making happening there.”

But one area where the future remains uncertain is the virtual prescribing of controlled substances.

At the federal level, the Drug Enforcement Administration has jurisdiction over these prescribing rules. The agency recently proposed regulations limiting the virtual prescription of certain controlled substances without an in-person evaluation including Adderall and Ritalin. But these proposed rules do not extend to Schedule III-V non-narcotic controlled medications or a 30-day supply of buprenorphine for treating opioid use disorder (OUD).

Christa Natoli, executive director of CTeL, believes states may align their policies with these proposed rules.

“With the onset of certain companies that have made the news recently in the mental health space that may not have been prescribing controlled substances in an appropriate way, we may see a trend by states to be more restrictive, to be protective of their patients, [and] not [give them] inappropriate access to stimulants,” she stated in a phone interview.

But telehealth proponents have decried the DEA’s proposed rules, with the American Telemedicine Association stating that they are “significantly more restrictive than is warranted.”  

“There’s concern a lot of patients will be abruptly cut off from needed medication because, for the last few years, they’ve been treated by telehealth providers utilizing this [public health emergency] exception,” Kwong said. “What happens to them is of great concern to many.”

Not only that, but the prescription of abortion drugs via telehealth is also in flux. Providers offering abortion care increasingly turned to telehealth to ensure access following the overturning of Roe v Wade last year. And while some states supported this move, others sought to block access, attempting to ban telehealth use in abortion care or limit the use of the drugs themselves.

Augenstein believes that states will continue to change policies surrounding medication abortions via telehealth. This issue may also be further complicated by a potential nationwide ban on one of the drugs routinely used for abortions, mifepristone.

In addition, Augenstein expects to see policy focused on the extent to which telehealth can be used to meet network adequacy requirements.

Network adequacy requirements aim to ensure that health plans “maintain a network of appropriate providers that is sufficient to provide adequate access to covered services to meet the needs of the population served,” according to the Centers for Medicare and Medicaid Services.

“I think we’ll see more activity this year…around the intersection between telehealth and network adequacy, with some states wanting to allow for plans to use telehealth in meeting their network adequacy requirements, and other states kind of banning the practice of allowing telehealth to be used to meet network adequacy requirements,” Augenstein said.

As healthcare stakeholders glean more insights into telehealth use and its impact on patient care, states have some critical decisions to make. Though there are many factors to consider, telehealth proponents are urging state governments to ensure that the benefits provided by expanded access to telehealth are not wiped out by a move back to pre-pandemic restrictions on virtual care.

“At the end of the day, healthcare and telehealth are the same,” Zebley said. “They’re not separate and apart. Telehealth is health. We should make sure that telehealth is not being held to, certainly not lower standards, and not to higher standards either. But instead, the same standard that in-person care is held to.”

The post How Telehealth Policy is Evolving at the State Level appeared first on mTelehealth.

WASHINGTON – Today, the Drug Enforcement Administration announced proposed permanent rules for the prescribing of controlled medications via telemedicine, expanding patient access to critical therapies beyond the scheduled end of the COVID-19 public health emergency. The public will be able to comment for 30 days on the proposed rules.

The proposed rules – developed with the U.S. Department of Health and Human Services and in close coordination with the U.S. Department of Veterans Affairs – propose to extend many of the flexibilities adopted during the public health emergency with appropriate safeguards.

The proposed rules do not affect:

• Telemedicine consultations that do not involve the prescribing of controlled medications.
• Telemedicine consultations by a medical practitioner that has previously conducted an in-person medical examination of a patient.

The proposed rules also would not affect:

• Telemedicine consultations and prescriptions by a medical practitioner to whom a patient has been referred, as long as the referring medical practitioner has previously conducted an in-person medical examination of the patient.

The proposed rules would provide safeguards for a narrow subset of telemedicine consultations—those telemedicine consultations by a medical practitioner that has: never conducted an in-person evaluation of a patient; AND that result in the prescribing of a controlled medication. For these types of consultations, the proposed telemedicine rules would allow medical practitioners to prescribe:

• a 30-day supply of Schedule III-V non-narcotic controlled medications; 
• a 30-day supply of buprenorphine for the treatment of opioid use disorder

without an in-person evaluation or referral from a medical practitioner that has conducted an in-person evaluation, as long as the prescription is otherwise consistent with any applicable Federal and State laws. The proposed rules are explained in further detail for patients and medical practitioners on DEA.gov.

“DEA is committed to ensuring that all Americans can access needed medications,” said DEA Administrator Anne Milgram.  “The permanent expansion of telemedicine flexibilities would continue greater access to care for patients across the country, while ensuring the safety of patients. DEA is committed to the expansion of telemedicine with guardrails that prevent the online overprescribing of controlled medications that can cause harm.”

“Improved access to mental health and substance use disorder services through expanded telemedicine flexibilities will save lives,” said HHS Secretary Xavier Becerra. “We still have millions of Americans, particularly those living in rural communities, who face difficulties accessing a doctor or health care provider in-person. At HHS, we are committed to working with our federal partners and stakeholders to advance proven technologies and lifesaving care for the benefit of all Americans.”

The proposed telemedicine rules also further DEA’s goal of expanding access to medication for opioid use disorder to anyone in the country who needs it. “Medication for opioid use disorder helps those who are fighting to overcome substance use disorder by helping people achieve and sustain recovery, and also prevent drug poisonings,” said DEA Administrator Milgram. “The telemedicine regulations would continue to expand access to buprenorphine for patients with opioid use disorder.”

The full text of the proposals may be found here and here. The public has 30 days to review and comment on the proposals, which DEA will then consider before drafting final regulations. DEA is appreciative of the public’s feedback.

For more information on DEA’s continued efforts to expand access to medications used in treatment for those suffering from opioid use disorder, visit: DEA’s Commitment to Expanding Access to Medication-Assisted Treatment.

Additional resources for patients can be found here: 

• Is My Prescription a Controlled Medication? Controlled-Non Controlled List (dea.gov)
• Can My Medication be Prescribed through Telemedicine?  Controlled Substance Guidance (dea.gov)

Additional resources for practitioners can be found here:

• Proposed Rules Summary Telemedicine Rules Summary.pdf (dea.gov)
• Proposed Rules Highlights for Medical Practitioners Telehealth Practitioner Narrative.pdf (dea.gov)

The post DEA Announces Proposed Rules for Permanent Telemedicine Flexibilities appeared first on mTelehealth.