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COVID-19: CMS Issues Telehealth Guidance for State Medicaid and CHIP Programs

On April 23, 2020, the Centers for Medicare & Medicaid Services (CMS) released the “State Medicaid & CHIP Telehealth Toolkit: Policy Considerations for States Expanding Use of Telehealth” (the Toolkit). Telehealth allows patients to receive necessary health care services without risking the spread of COVID-19 through in-person interactions. The Toolkit is one of several guidance documents CMS has issued to expand use of telehealth during the COVID-19 pandemic. As discussed previously, CMS has expanded coverage of telehealth services for all Medicare beneficiaries, allowing practitioners to treat patients (whether new or established) via telehealth, and allowing telephone only services in various circumstances. 

However, because federal and state governments dually fund Medicaid as a state-administered program, and each state designs its own program (subject to CMS approval for federal funding), it is not practical for CMS to issue sweeping waivers on telehealth services applicable to all states. Medicaid covers 71 million Americans, including 35 million children, and Medicaid may become an even more important safety net due to the economic implications of the COVID-19 pandemic. Consequently, the Toolkit aims to help states expand Medicaid telehealth coverage by identifying existing state policies that may impede the use of telehealth. Below we summarize some key points from the Toolkit, but refer interested parties to review the Toolkit in full.  

The Toolkit describes telehealth as a “mix of four interrelated domains” and provides questions that states should consider for each domain in order to minimize barriers to telehealth utilization. The four domains include: 


The population to whom service is being delivered. States may have policies in place that limit telehealth coverage to certain populations like residents of rural areas, for instance. States have the flexibility to cover telehealth services across patient populations. The Toolkit directs states to consider the following questions, among others, when assessing policies that restrict the population who have access to telehealth:

  • Are there limitations on the populations who may receive services via telehealth?

  • Can practitioners establish a new provider-patient relationship via telehealth?

Services & Reimbursement

The service that is being delivered, including coverage and reimbursement. Historically, a number of states have covered only a limited number of services when provided via telehealth, including behavioral health services, for instance. Moreover, an American Telemedicine Association report found that only twenty-eight states have adopted Medicaid payment parity between telehealth and in-person services. States lacking payment parity laws may unduly restrict the ability for telehealth to facilitate increased access to care. States should consider the following:

  • Are there differences in the ability to bill Medicaid/CHIP for telehealth services by provider or telehealth modality?

  • Are there additional documentation requirements for telehealth services? Are these requirements necessary? Do these requirements decrease telehealth utilization?
  • How does telehealth affect Medicaid services addressing social determinants of health?


The practitioner delivering the service. State scope of practice laws may limit which practitioners can deliver services via telehealth. For instance, states may authorize some practitioners including obstetricians, gynecologists, dentists, and physical and occupational therapists to bill Medicaid, but state scope of practice laws may prohibit these practitioners from providing services via telehealth. States should consider the following:

  • Are there restrictions as to which practitioners are eligible to bill for telehealth services and do these restrictions differ by telehealth modality?

  • What training must a practitioner have in order to practice via telehealth? Is re-training required at specific time intervals? Do training requirements differ by practitioner specialty or telehealth modality?
  • Are payment rates adequate to cover the additional expenses associated with telehealth?


The technology used to deliver the service. Practitioners may deliver telehealth via various means, and states often regulate provision of telehealth services by requiring a specific modality. For instance, two-way audio/visual communication, store and forward, and remote patient monitoring are three possible modalities. However, CMS and many private payors have relaxed or waived telehealth modality requirements in an effort to increase access to telehealth services. For instance, some payer policies allow the use of audio-only communication in limited circumstances during the COVID-19 pandemic. States should consider the following when analyzing expansion of telehealth coverage: 

  • Do states have privacy laws that exceed the requirements of the Health Insurance Portability and Accountability Act (HIPAA)? 

  • Do state laws regulate the distant and originating site for telehealth services? Do these laws limit the functionality of telehealth?

The Toolkit also discusses provision of telehealth services to pediatric patients. For instance, state policies, including consent and privacy laws may impede access to telehealth for pediatric patients. State consent laws may require parental consent for children utilizing telehealth services, or new consent and re-consent in some situations. Moreover, states should consider whether credentialing and licensure requirements for pediatric practitioners present a barrier to telehealth utilization.

Finally, the Toolkit answers frequently asked questions (FAQs) in the area of Medicaid/CHIP benefit, financing, workforce, managed care and health information exchange flexibilities. Largely, these FAQs highlight guidance previously issued by CMS or flexibilities established by existing federal statutes and regulations. 

The State Medicaid & CHIP Telehealth Toolkit represents CMS’s continuing effort to ensure access to necessary health care services despite disruptions due to the COVID-19 pandemic. By considering the questions posed in the Toolkit, states may identify the regulatory and policy barriers that restrict telehealth utilization and take action to limit these barriers and, in turn, increase access care. 

© 2022 Foley & Lardner LLPNational Law Review, Volume X, Number 120

About this Author

Olivia King Health Care Lawyer Foley Lardner Boston

Olivia King is an associate with Foley & Lardner LLP and a member of the firm’s Health Care Industry Team.

Olivia was selected for the inaugural Mayo-Foley Health Law Fellowship, consisting of summer internships with the Mayo Clinic Legal Department in Rochester, Minnesota (2017), and Foley (2018).While at the Mayo Clinic, Olivia researched and prepared memorandum on state and federal medical prescribing and licensure requirements with analysis of potential implications on telemedicine initiatives and state mental health ombudsman reporting...

Kyle Faget, Foley Lardner, Government policy lawyer

Kyle Faget is a Partner and business lawyer with Foley & Lardner LLP. She is a member of the firm’s Government & Public Policy Practice and the Health Care and Life Sciences Industry Teams. Her practice focuses on advising clients on regulatory and compliance matters involving the Food, Drug & Cosmetic Act, the False Claims Act, the Anti-Kickback Statute, the AdvaMed Code, and the PhRMA Code. She also regularly drafts and negotiates agreements required for the development and commercialization of pharmaceutical and medical device products. Prior to joining...