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

S. 1699: Tech to Save Moms Act

• This 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 Act

Introduced May 17, 2023

• This 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 sites
  • Permit store-and-forward technologies in all states
  • Require reimbursement for telehealth services provided in a critical access hospital
  • Require a telehealth payment rate for telehealth services furnished by a FQHC or RHC
  • Allow 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 2023

Introduced May 17, 2023

• This 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 Act

Introduced May 9, 2023

• This 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.

Colorado

• Colorado 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.

Hawaii

• Hawaii passed H.B. 650, which expands the provider types eligible to provide counseling services through telehealth.

Iowa

• Iowa 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.

Montana

• 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.

Nevada

• Nevada 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.

Oregon

• Oregon 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.

Vermont

• Vermont 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.

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)

• The 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 Medications

• The 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 Risks

• The 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)

• The 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)

• The 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.