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Telehealth Update: States Move to Permanently Expand Access to Telehealth

As previously covered, over the past year the telehealth landscape has been a patchwork of temporary waivers and regulations, expanding access during the COVID-19 pandemic but leaving providers and patients uncertain about whether the positive coverage and reimbursement changes and relaxation of pre-pandemic restrictions would continue in the future.  Many of the waivers on the national and state level are still tied to the federally declared public health emergency (PHE), which the Biden administration has indicated is likely to extend through the end of 2021. In recent weeks though, we have seen a number of state actions making permanent changes to expand access to telehealth.  The following examples suggest a positive trend towards making telehealth an integral part of the care delivery system, although the complicated regulatory frameworks still present challenges to providers seeking to treat patients via telehealth.

Massachusetts recently passed “An Act Promoting A Resilient Health Care System that Puts Patients First” (SB 2984, Chapter 260), which addresses insurance coverage of telehealth services, including requiring reimbursement of behavioral health services delivered via telehealth at the same level as in-person services.  The law also requires telehealth rate-parity for primary care and chronic disease management services through 2023, and telehealth rate-parity for all services for 90 days after the end of the COVID-19 emergency.  Notably, the Act defines telehealth to include “(i) interactive audio-video technology; (ii) remote patient monitoring devices; (iii) audio-only telephone; and (iv) online adaptive interviews, for the purpose of evaluating, diagnosing, consulting, prescribing, treating or monitoring of a patient's physical health, oral health, mental health or substance use disorder condition.”

Earlier this month, South Dakota also passed a law removing several restrictions on the provision of telehealth services in the state.  “An Act to revise certain provisions regarding the use of telehealth technologies” (SB 96) removes restrictions on the delivery of telehealth via audio-only telephone, e-mail, text message, fax, or a combination thereof.  The Act also specifies that the provider-patient relationship may be established “utilizing technology sufficient to evaluate and diagnose and appropriately treat a patient…in accordance with the applicable standard of care.” 

Last week, New Jersey’s State Board of Dentistry, Occupational Therapy Advisory Council, Alcohol and Drug Counselor Committee, and State Board of Respiratory Care all issued proposed rules establishing telehealth standards for their respective practice areas.  The proposed rules set forth requirements for the standards of care, licensee-patient relationship, provision of services, recordkeeping, prevention of fraud and abuse, and privacy and patient notification.  Comments on each of the proposed rules are due May 14, 2021.  Regulations related to the provision of telehealth services by non-physician providers were also recently issued in Louisiana (final rule of the Board of Dentistry), Texas (proposed rule of the Optometry Board), Iowa (final rule of the Board of Dietetics), and Nevada (notice from the Board of Occupational Therapy), among other states. 

A number of states have also issued regulations related to reimbursement for telehealth services, unrelated to the COVID-19 pandemic.  For example, the Ohio Department of Medicaid recently amended its regulations to establish telehealth standards for hospice and home health services, where clinically appropriate.  Texas’s Health and Human Services Commission also recently amended its regulations related to federally qualified health center reimbursement to include coverage of telehealth services.  Colorado and Oregon have also recently expanded coverage of telehealth services. 

While these state actions provide a greater degree of certainty to providers providing telehealth services in these specific jurisdictions, as of now, many of the federal telehealth waivers are set to expire shortly after the end of the PHE.  For example, during the PHE, the requirements related to in-person examinations under the Controlled Substance Act may be met via synchronous audio-visual interaction between the prescribing provider and the patient.  Without further action from the Drug Enforcement Agency (DEA), the in-person examination requirement will be reinstated following the termination of the PHE.  The DEA’s current waiver allowing providers to use their DEA registration from one state across multiple states in which they are licensed will similarly expire once the PHE is resolved.  The Office for Civil Rights’ enforcement discretion related to the use of non-HIPAA compliant technology and several of the Medicare telehealth waivers are also tied to the PHE. 

As the light at the end of the COVID-19 tunnel becomes clearer, we will continue to track the fast moving changes impacting telehealth at the state and federal level.  Stay tuned, and stay safe!

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Cassandra L. Paolillo is Of Counsel at Mintz whose practice involves advising health care clients on transactional and regulatory matters, including mergers and acquisitions, regulatory compliance, and general contracting. Cassie primarily works with providers and payors.
Ellen provides strategic advice to health care providers, investors, and start-ups on telehealth initiatives as well as the traditional practice of medicine across multiple states.