Moses & Singer LLP

Federal and State Lawmakers Move to Increase Access to Telehealth Services, But Numerous Obstacles Remain

October 1, 2018

By: Linda A. Malek and Nora Lawrence Schmitt

As the world becomes increasingly digital, more and more healthcare providers are using telehealth technologies to expand services and maximize patients’ access to care.   It is no surprise then that the past several years have shown a national trend towards increasing access to, and expanding reimbursement for, telehealth services.  Nevertheless, numerous obstacles remain for providers engaged in telehealth, due in part to competing state and federal laws, as well as significant differences in how states regulate the provision of, and payment for, telehealth services.  This article will discuss some of the most recent telehealth developments on the federal and state levels, while highlighting some of the roadblocks that remain for the expansion of telehealth services.

On the federal level, the Centers for Medicare and Medicaid Services (CMS) released a proposed rule on July 27, 2018 which would expand federal reimbursement for certain telehealth services.   Citing a desire to increase access to services for Medicare beneficiaries, CMS issued a proposal to reimburse providers for brief check-ins with patients via telehealth, and to allow the use of “store and forward” communication technology, which enables providers to perform remote evaluations of pre-recorded images and videos transmitted by patients.  Notably, CMS proposed to distinguish these types of remote evaluation services from Medicare’s statutorily defined “telehealth services” which are subject to certain statutory limitations relating to geography, patient setting, or type of furnishing practitioner.  Instead, under the proposed rule, CMS would provide reimbursement for such services under the Medicare Physician Fee Schedule.  CMS also proposed expanding the list of Medicare Part B services that can be furnished via telehealth to include monthly clinical assessments performed at renal dialysis facilities or at the homes of individuals with end-stage-renal disease.  The proposed rule seeks to add mobile stroke units as permissible “originating sites” for the use of telehealth for acute stroke services. 

CMS sought comment on a number of issues related to the above, including whether reimbursement for virtual check-ins should be limited to patients who have an established relationship with the provider, and whether a provider should be required to record patient consent at each individual virtual check-in.    Commenters to the proposed rule expressed support for the expansion of reimbursable telehealth services but cautioned CMS against imposing overly burdensome restrictions that could discourage the use of such services by beneficiaries and providers.

There have been numerous developments on the state level as well.  As of July 1, 2018, Connecticut providers may now prescribe Schedule II and III controlled substances for the treatment of psychiatric disabilities and substance use disorders via telehealth.  In April, 2018, Kentucky signed into law SB 112, which mandates coverage and payment parity for telehealth services in both Medicaid and commercial health plans as of July 1, 2019.  The Kentucky bill prohibits health plans from requiring additional prior authorizations, medical review, or administrative clearance for telehealth services that would not be required for the same service if provided in person.  It also prohibits health plans from requiring that a provider be physically present with a patient unless the provider has determined that it is necessary to perform the specific services in person.  Also in April, 2018, Iowa passed HF 2305 which prohibits commercial health plans from discriminating between coverage benefits of health care services provided in person and the same health care services that are delivered through telehealth.  Iowa’s new law will take effect on January 1, 2019

In expanding access to, and reimbursement for, telehealth services, Connecticut, Kentucky, and Iowa are in good company.  Currently, the majority of states require Medicaid and commercial health plans to provide reimbursement for at least some telehealth services, and many states, including New Jersey, California, Nebraska, and Washington have enacted laws further expanding coverage for telehealth services in the last two years. 

Nevertheless, numerous obstacles to the provision of telehealth services remain.  On the state level, restrictions are often built directly into the law.  For example, many states limit the types of technology that can be used to provide telehealth services.  Kentucky, for instance, requires the use of real-time, interactive audio and video technology, but permits the use of “store and forward” technology, which allows a provider to access the patient’s medical history prior to an encounter.  Iowa, on the other hand, explicitly prohibits the use of “store and forward” technology.  Another common restriction on the provision of telehealth services is to require that providers maintain an ongoing in-person relationship with patients to whom they provide telehealth services.  For example, New Jersey requires an initial in-person examination and subsequent in-person follow-up for a patient to receive telehealth services from a given provider.

Another major obstacle that telehealth providers face is the conflicting regulatory requirements across state lines.  For example, some states, such as Florida, limit the provision of telehealth to physicians and physician assistants, while other states, such as New Jersey, allow a wide range of providers to engage in telehealth services, including psychologists, speech pathologists, and optometrists.  Additionally, certain states, such as Arkansas, limit the provision of telehealth services to only certain health care facilities, such as licensed hospitals, while others, such as California, prohibit health plans from placing any limitations on where telehealth services can be provided.  In New York, for example, telehealth laws differ between Medicaid and commercial health plans. These vast differences in how states regulate the provision of telehealth can make it very difficult, if not impossible, for healthcare providers to implement uniform telehealth policies.  The complex regulatory landscape also necessitates consistent vigilance on the compliance front.

Additionally, providers of telehealth must navigate the often incongruous relationship between state and federal laws, and juggle compliance with overlapping state and federal requirements.  For example, telehealth providers must ensure compliance with both state and federal privacy laws, a difficult task as states expand the types of technology providers can use for telehealth services.  Similarly, when taking advantage of expanded telehealth options on a state level, providers must consider whether federal law imposes any additional obligations.  For example, under Connecticut’s new law, providers utilizing telehealth technology to prescribe controlled substances must remain in compliance with the federal Ryan Haight Act, the law regulating the use of telehealth to prescribe controlled substances on a federal level, which contains obligations above and beyond those in the Connecticut law.  In addition, federal laws like the Telephone Consumer Protection Act (TCPA), which regulates telemarketing calls and text messages, may create obstacles for providers hoping to engage patients through the use of services like automated appointment reminders or seasonal wellness alerts (such as encouraging patients to receive flu shots).

Moses & Singer’s Healthcare Department monitors developments in the regulation of telehealth services on both a state and federal level.  For more information on the services we provide regarding telehealth, contact Healthcare Department Chair Linda Malek at (212) 554-7814.


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