Emerging State Policies, CMS Telehealth Policy Updates & Hope for PHE Policy Extension

As the Center for Connected Health Policy has continued to update our Telehealth Policy Finder over the course of 2022, a few new elements are beginning to emerge in newly passed legislation and in adopted Medicaid policies.  While these may not yet be trends, they have potential to develop into trends, as it is common for states to research and copy telehealth policy language from other states. Policy elements CCHP has noted as potentially emerging trends are listed below:

In-Person Exam Requirement – Congress started this with the passage of the SUPPORT for Patients and Communities Act which requires an in-person visit occur within 6 months prior to an initial telehealth mental health visit and every 12 months afterward in the Medicare program.  A few states have picked up on this policy, but not always as it relates to reimbursement.  For example, a new Alabama law now requires in its Code regulating health professionals that if a physician or group provides telehealth medical services more than four times in a 12-month period to the same patient for the same medical condition without resolution, the physician must see the patient in person or refer the patient to a physician who can provide the in-person care.  Tennessee’s private payer law specifies that evidence of an in-person encounter between the health care provider and the patient within sixteen months prior to the interactive event is required (although there is an exception during a state of emergency).

Allowance for Out-Of-State Providers:  Prior to COVID, it was rare to find an explicit allowance for a provider from another state to practice within their state, even if delivering services to a patient that they have a prior relationship with and is a permanent resident of the state they are licensed in (as is often the case for college students and out-of-town vacationers).  CCHP has noted a few states that have recently passed legislation to make this allowance for specific professions and in certain circumstances, including Alabama, Virginia, and Illinois.

Prescribing Requirements and Payer Restrictions in Private Payer Law:  While in the past prescribing requirements were confined to telehealth practice standards within professional codes and regulation (often for pharmacists, physicians and APRNs), two states are now also including mentions of them in their private payer law.  For example, Maine is requiring that a clinical evaluation be conducted either in person or via telehealth before a written prescription is ordered, and the law also prohibits insurers from placing any restrictions on prescriptions through telehealth that is within their scope of practice.  Oklahoma also now has a similar law which prohibits insurers from placing restrictions on prescribing medications through telemedicine that are more restrictive than what is typically required in federal or state law.

Professional Telehealth Practice Standards in Medicaid Policy:  Typically, standards related to forming a provider-patient relationship are contained within states’ Professions and Occupations Code. However, Arkansas recently updated their Medicaid provider manual regulations to incorporate such standards within its policy.  As many Arkansas boards also have their own telehealth practice standards (See: CCHP AR Professional Board Standards), this can create complexity for providers navigating both policies. To keep up to date on each states’ policies, search in CCHP’s Telehealth Policy Finder; and for recent legislation, visit CCHP’s Pending Legislation webpage.