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Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 (UPDATED)

2023: New Federal Developments

New ItemActivity
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.
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.


2023: New State-Level Developments

StateActivity
FloridaFlorida passed H.B. 267, which removes the exclusion of audio-only from the definition of telehealth.
GeorgiaGeorgia passed S.B. 20, which prohibits insurers from: requiring prior authorization for telehealth services that would not be required in-person; requiring demonstration that telehealth services are necessary; requiring providers to be employed by the provider or agency where they provide telehealth services if such arrangements are not required for in-person care delivery; restricting coverage of telehealth services based on technology used; requiring providers to be part of a telehealth network; requiring the utilization of telehealth services in lieu of a nonparticipating provider providing in-person services; and requiring the payment of a facility fee to a hospital for telehealth services.
IndianaIndiana passed H.B 1352, which allows providers and provider groups that are licensed in IN, exclusively provide services via telehealth, and do not maintain a physical presence in Indiana to be enrolled in Medicaid.
MontanaMontana passed S.B. 214, which enters the state into the Audiology and Speech-Language Pathology Interstate Compact. The compact allows audiologists, speech-language pathologists, speech-language pathology assistant, and audiology assistants to practice via telehealth in other member states.Montana 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.
New HampshireNew Hampshire passed H.B. 500, which allows a physician and APRN to prescribe non-opioid and opioid controlled drugs (Schedule II – IV)  via telehealth after a physician-patient relationship has been established. Upon prescribing the drug, an in-person exam must be conducted at intervals appropriate for the patient and condition, but not less than annually.


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

PolicyDetails
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 
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.