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Changes to New York Telehealth Coverage Coming Soon

After New York became the 22nd state to enact a telemedicine commercial coverage statute, Governor Andrew Cuomo signed an amendment changing the statute. The amendment makes sweeping changes to telehealth coverage under New York Medicaid and commercial health insurance. With an effective date of January 1, 2016, providers and insurers need to be ready and positioned for the patients who will want to enjoy this new coverage. Those providers who develop their business models, finalize their contractual arrangements, and timely deploy their telehealth offerings will have a significant strategic advantage come January.

New York Medicaid Telehealth Coverage

Under the amended law, the New York Medicaid program will reimburse for telehealth services. Providers should note the following key provisions:

  • Eligible telehealth providers include physicians, physician assistants, dentists, nurse practitioners, nurses, psychologists, social workers, diabetes educators, genetic counselors, and a variety of other professionals.

  • Telehealth is broadly defined as the use of electronic information and communication technologies by telehealth providers to deliver health care services, including the assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a patient. The term includes real-time two-way electronic audio visual communications, asynchronous store & forward technology, and remote patient monitoring.

  • The term excludes “audio-only telephone communication, fax, machines, or electronic messaging alone” (though the use of these technologies is not precluded if used in conjunction with telemedicine, store and forward technology, or remote patient monitoring).

  • Notably, the definition of “store and forward” expressly includes asynchronous pre-recorded videos from a provider at the originating site to a telehealth provider at a distant site.

  • With the exception of remote patient monitoring, New York Medicaid coverage requires the patient be located at a qualifying originating site (e.g., hospitals, hospices, mental health facilities, diagnostic and treatment centers, certain FQHCs, certain School Based Health Centers, physician offices). Medicaid covers remote patient monitoring at the patient’s home.

New York Commercial Plan Telehealth Coverage

Effective January 1, 2016, the Insurance Law will require commercial health insurers to cover telehealth. Specifically, an insurer may not exclude from coverage a service that is otherwise covered in-person, simply because the service is delivered via telehealth. The law does allow plans to employ “reasonable utilization management and quality assurance” requirements consistent with those used with corresponding in-person services. Insurers may not impose higher co-pays or other patient responsibilities on telehealth services.

The commercial insurance law differs from the Medicaid law in three notable ways:

  • The commercial law uses a broader definition of telehealth. Telehealth means “the use of electronic information and communication technologies by a health care provider to deliver health care services to an insured individual while such individual is located at a site that is different from the site where the health care provider is located.”

  • The commercial insurance law does not define a narrow band of eligible telehealth providers, nor does it differentiate between real-time, asynchronous (store & forward), or remote patient monitoring.

  • The commercial insurance law contains no originating site restriction, thereby significantly increasing opportunities for patient access to care via telehealth.

The New York State Department of Health is expected to release telehealth and telemedicine regulations later this year. We will continue to monitor for these forthcoming rules.

Nationwide, states are enacting laws requiring commercial health insurance companies must cover medical services provided via telemedicine to the same extent they cover medical services provided in-person. Currently, 29 states plus the District of Columbia have enacted telemedicine commercial insurance laws, with legislation under discussion or development in many more, including Massachusetts and Florida. These laws are intended to promote innovation and care delivery in the private sector by catalyzing health care providers and plans to invest in and use the powerful telemedicine tools and technologies available in the marketplace.

Some New York hospitals and innovative companies have already taken the initiative and successfully embedded telemedicine into their patient care delivery models. When coverage goes live in January 2016, patients in New York will be able to enjoy a powerful and convenient approach to healthcare.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 292


About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

Elizabeth Rosen, Health Care Attorney, Foley Lardner Law Firm

Elizabeth J. (Betsy) Rosen is an associate and health care lawyer with Foley & Lardner LLP. She focuses her practice in the health care field where she advises hospitals, hospital systems, physician organizations and other health care entities on regulatory, transactional and corporate matters. Ms. Rosen is a member of the firm's Health Care Industry Team. Ms. Rosen worked as a summer associate with Foley in 2012.