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Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 – June 2023

2023: New Federal Developments

New ItemActivity
S. 1699: Tech to Save Moms ActIntroduced May 18, 2023This bill would require 1) the Center for Medicare and Medicaid Innovation to test payment and delivery models regarding the adoption and use of telehealth tools for screening, monitoring, and managing health complications during the pregnancies of Medicaid beneficiaries, and 2) the Secretary of Health and Human Services to submit a report to Congress that includes recommendations related to maternal telehealth services reimbursement, barriers to maternal telehealth service provision and access, and lessons learned from expanded access to telehealth maternity care during the COVID-19 Public Health Emergency (PHE).
H.R. 3440: Protecting Rural Telehealth Access ActIntroduced May 17, 2023This bill would amend title XVIII of the Social Security Act, related to the delivery of telehealth services under the Medicare program:Eliminate geographic requirements for originating sitesPermit store-and-forward technologies in all statesRequire reimbursement for telehealth services provided in a critical access hospitalRequire a telehealth payment rate for telehealth services furnished by a FQHC or RHCAllow the use of audio-only technology for certain telehealth services including: E/M services, behavioral health counseling and education services, and other services determined appropriate by the secretary
H.R. 3432: Telemental Health Care Access Act of 2023Introduced May 17, 2023This bill would remove the statutory requirement that Medicare members be seen in-person within six months of being treated for mental and behavioral health services through telehealth.
H.R. 3129: Health Care Fairness for All ActIntroduced May 9, 2023This bill would permanently extend Medicare’s telehealth flexibilities that are otherwise slated to end on the final day of the COVID-19 Public Health Emergency (PHE) period or December 1, 2024.


2023: New State-Level Developments

StateActivity
ColoradoColorado passed H.B. 1088, which provides reimbursement for twenty-six mental health-care sessions per year, including through telehealth, for eligible veterans and establishes payment parity between mental health care sessions delivered in-person and via telehealth.
HawaiiHawaii passed H.B. 650, which expands the provider types eligible to provide counseling services through telehealth.
IowaIowa passed H.F. 671, which enters the state into the interstate Counseling Compact. The Compact allows professional counselors licensed and residing in compact member states to practice via telehealth in other member states.
MontanaMontana passed S.B. 155, which enters the state into the Occupational Therapy Licensure Compact. The compact allows occupational therapists to practice via telehealth in other member states.
NevadaNevada passed S.B. 119, which extends payment parity through July 1, 2023 for all services (except audio-only). Beyond July 2023, the bill extends payment parity at certain originating sites (including FQHCs), and for mental health services via audio-only.
OregonOregon passed S.B. 232, which defines the practice of telemedicine as occurring where the patient is located, and allows out-of-state physicians and physician assistants to provide temporary or follow-up telehealth services to patients in OR if there is an established provider-patient relationship, and mandates that out-of-state providers providing telehealth services to OR patients are subject to state rules and regulations.
VermontVermont passed H.B. 62, which enters the state into the interstate Counseling Compact. The Compact allows professional counselors licensed and residing in compact member states to practice via telehealth in other member states.Vermont passed H.B. 86, which enters the state into the Audiology & Speech-Language Pathology Interstate Compact. The Compact allows licensed audiologists and speech-language pathologists to practice via telehealth in other compact member states.

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 June 2023)


2023: Federal Developments More than One Month Old

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

Executive Branch Activity

PolicyDetails
OIG Report: Medicare Improperly Paid Providers for Some Psychotherapy Services, Including those Provided via Telehealth, During the First Year of the COVID-19 Public Health Emergency (PHE)Released May 2023The Office of Inspector General (OIG) at the Department of Health and Human Services (DHHS) released a report detailing findings from a national audit to evaluate compliance issues with psychotherapy services, including those provided via telehealth, in Medicare. The report details volume and type of noncompliance with Medicare requirements, and describes providers’ experience with providing telehealth during the Public Health Emergency.
DEA Statement on COVID-19 Telemedicine Flexibilities for Prescription of Controlled MedicationsReleased May 3, 2023The Drug Enforcement Administration (DEA) issued a statement from Administrator Anne Milgram which notes that the DEA has “decided to extend the current [public health emergency (PHE)] flexibilities while [working] to find a way forward to give Americans that access with appropriate safeguards.” The statement notes that DEA and the Department of Health and Human Services have submitted an as-yet-unpublished temporary rule to the Office of Management and Budget in order to extend these flexibilities beyond next week’s PHE termination date.For more information on the DEA’s statement, please see our May 4 newsletter.
OIG Toolkit on Analyzing Telehealth Claims to Assess Program Integrity RisksPublished April 2023The Office of Inspector General (OIG) published a toolkit on analyzing telehealth claims, with the intention of assessing program integrity risks. The goal of the toolkit is to “provide an approach to analyzing claims data for telehealth to identify areas in which additional safeguards may be necessary [and] identify providers whose billing may pose a risk and warrant further scrutiny.” 
DEA Proposed Rules Regarding Prescribing of Controlled Substances via Telemedicine (here and here)Released February 24, 2023The DEA released two proposed rules regarding telemedicine prescribing of controlled substances. The rules would require patients being newly prescribed a Schedule II-IV medication following the end of the COVID-19 PHE have an in-person evaluation prior to obtaining a prescription via telemedicine. Patients who accessed these medications via telemedicine during the COVID-19 PHE will have 180 days following the final rule to have an in-person visit.For more information on these proposed rules, please see our March 1 newsletter.
CMS Guidance on Interprofessional Consultations (eConsults)Released January 3, 2023The Centers for Medicare & Medicaid Services (CMS) issued guidance to clarify that interprofessional consultations (eConsults) can be reimbursed by Medicaid and CHIP, even when the beneficiary is not present.For more information on the CMS Interprofessional Consultation Guidance, please see our January 19 newsletter.


Legislative Activity

Bill/ActivityKey Proposed Actions
Activity 
 N/A; No applicable legislative activity in 2023.
Introduced Legislation 
S.B. 1315: Veterans’ Health Empowerment, Access, Leadership, and Transparency for our Heroes (HEALTH) Act of 2023Introduced April 26, 2023This bill requires the Secretary to ensure that veterans are informed of the availability of telehealth services, and disallows the Secretary from taking into consideration the availability of telehealth appointments when determining a veteran’s community care program eligibility.
H.R. 2907 / S. 1297: Let Doctors Provide Reproductive Health Care ActIntroduced April 26, 2023This bill would prevent states and other entities from restricting the provision of reproductive health care services, including through telehealth.
H.R. 2573: To express the Sense of Congress with respect to Federal preemption of State restrictions on dispensing medication abortion, and for other purposes.Introduced April 10, 2023This bill would express that it is the sense of Congress that:Medication abortion was appropriately approved, and regulated, under the Food, Drug, and Cosmetic Act; and,Approval of medication abortion under the Food, Drug, and Cosmetic Act preempts any state law establishing, implementing, or enforcing: (1) any requirement that medication abortion be dispensed in-person; (2) any prohibition or restriction on prescribing or dispensing medication abortion via telehealth. 
H.R. 12: Women’s Health Protection Act of 2023Introduced March 30, 2023This bill would prohibit limitations on a provider’s ability to deliver or a patient’s ability to receive telemedication abortion services that are not otherwise applied to other “medically comparable services via telemedicine.
H.R. 1843 / S. 1001: Telehealth Expansion Act of 2023Introduced March 28, 2023This bill would amend the Internal Revenue Code of 1986 to ensure that “a plan shall not fail to be treated as a high deductible health plan by reason of failing to have a deductible for telehealth and other remote care services”.
S. 731: TELEHEALTH HSA Act of 2023 / Telemedicine Everywhere Lifting Everyone’s Healthcare Experience And Long Term Health HSA Act of 2023Introduced March 9, 2023This bill removes restrictions that require the originating site (i.e., the location of the beneficiary) to be in a rural area, and allows the home of a beneficiary to serve as the originating site, for behavioral health telehealth services under Medicare. The bill applies to services provided on or after January 1, 2025.The bill also expands the scope of required guidance, studies, and reports to address the provision of such services under Medicaid.
S. 730: Enhance Access to Support Essential (EASE) Behavioral Health Services ActIntroduced March 9, 2023This bill would amend the Internal Revenue Code of 1986 to “make permanent the permissible first dollar coverage of telehealth services for purposes of health savings accounts.”
S. 729: Audio-Only Telehealth for Emergencies ActIntroduced March 9, 2023This bill would ensure payment parity of audio-only services in Medicare during an emergency declaration.
S. 701: Women’s Health Protection Act of 2023Introduced March 8, 2023This bill would prohibit limitations on a provider’s ability to deliver or a patient’s ability to receive telemedication abortion services that are not otherwise applied to other “medically comparable services via telemedicine”.
H.R. 1114: Department of Veterans Affairs Telehealth Strategy ActIntroduced February 21, 2023This bill would direct the Secretary of Veterans Affairs to develop a telehealth strategy for services furnished by the Veterans Health Administration and submit a report on end-user devices that facilitate telehealth services.
H.R. 1110: KEEP Telehealth Options Act of 2023 / Knowing the Efficiency and Efficacy of Permanent Telehealth Options Act of 2023Introduced February 21, 2023This bill would require the Secretary of Health and Human Services, the Medicare Payment Advisory Commission, and the Medicaid and CHIP Payment and Access Commission to conduct studies on actions to expand access to telehealth services under Medicare, Medicaid, and CHIP during the COVID-19 Public Health Emergency.
H.R. 833: Save America’s Rural Hospitals Act Introduced February 6, 2023This bill would make permanent the Medicare telehealth service enhancements for federally qualified health centers and rural health clinics permanent listed under Paragraph (8) of section 1834(m) of the Social Security Act.
H.R. 824: Telehealth Benefit Expansion for Workers Act of 2023Introduced February 2, 2023This bill would treat telehealth services offered under a group health plan or other group health insurance coverage as excepted benefits.
H.R. 767: / S. 237: To preserve access to abortion medications.Introduced February 2, 2023This bill would ensure that the FDA risk evaluation and mitigation strategies applied to mifepristone:Do not have an in-person dispensing requirement;Allow for patient access via telehealth; and,Allow all pharmacies that are certified to dispense mifepristone to, at a minimum, dispense and mail the medication to patients.
H.R. 635: Expanding Access to Mental Health Services ActIntroduced 1/20/23This bill would allow certain HCPCS codes for behavioral health counseling and other services to covered via audio-only telehealth within the Medicare program.
H.R. 134: To amend title XVIII of the Social Security Act to remove geographic requirements and expand originating sites for telehealth services.Introduced January 9, 2023This bill would extend COVID-19 PHE Medicare geographic flexibilities for originating sites permanently.
H.R. 197: Rural Telehealth Expansion ActIntroduced January 9, 2023This bill would enable coverage and reimbursement for store-and-forward telehealth under the Medicare program.
H.R. 207: Advanced Safe Testing at Residence Telehealth Act of 2023Introduced January 9, 2023This bill would amend Title XVII of the Social Security act to provide payment for cover certain tests (e.g., serology tests for COVID-19, diagnostic tests or screenings for certain types of cancer, Haptoglobin genetic tests, prediabetes and diabetes screenings, etc.)  and assistive telehealth consultations (e.g., an evaluation and management service; the ordering of a diagnostic test or screening; an assessment of an individual succeeding the delivery of a diagnostic test or screening; etc.) under state programs.
Passed Legislation 
 N/A; No applicable passed legislation in 2023.


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.