October 15, 2021

Volume XI, Number 288


October 15, 2021

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COVID-19: New York’s Medicaid Expansion of Telehealth During the State of Emergency

On March 23, 2020, the New York State (NYS) Department of Health issued updated guidance regarding use of telehealth by Medicaid providers, Comprehensive Guidance Regarding Use of Telehealth including Telephonic Services During the COVID-19 State of Emergency (Medicaid Update March 23, 2020 Vol 36, Number 5) (Guidance), which replaces previously issued guidance regarding telehealth and telephonic communication services during the COVID-19 State of Emergency. This summary addresses only the highlights of the Guidance, which should be consulted directly. 

The newly released guidance expands the ability of all Medicaid providers to provide telehealth services for the care of Medicaid members by expanding the acceptable modalities for delivering care and by expanding acceptable originating site (the site where the NYS Medicaid member is located at the time healthcare services are delivered by means of telehealth) and distant site (the site where the telehealth provider is located while delivering healthcare services via telehealth) requirements. The Guidance allows Medicaid providers and healthcare organizations to bill Medicaid for audio-only services, such as through use of a telephone, if they cannot provide the services through synchronous audio-visual communication modalities normally required by Medicaid. Additionally, the Guidance makes clear that telehealth services will be reimbursed at parity with existing off-site visit payments (clinics) or face-to-face visits (i.e., 100% of Medicaid payment rates). The Guidance includes specific billing information for telephonic assessments, monitoring, evaluations and management services, and teledentistry. The Guidance also provides non-telephonic billing guidance. 

As discussed in greater detail below, NYS is following the U.S. Department of Health and Human Services Office for Civil Rights’ (OCR) approach to HIPAA compliance as outlined in the Notification of Enforcement Discretion, requiring telehealth providers to confirm NYS Medicaid members’ identity, taking an abbreviated approach to telehealth informed consent, and requiring consent for the recording of sessions/services. Importantly, the Guidance did not change any other Medicaid program requirements with respect to authorized services or provider enrollment, and did not expand authorization to bill Medicaid beyond service providers who are currently enrolled to bill Medicaid Fee for Service (FFS) or contracted with a Medicaid Managed Care Plan.

Originating and Distant Site Flexibility

During the State of Emergency, originating sites can be anywhere the member is located, and a permissible distant site is any location, including a healthcare provider’s home, that is within the fifty United States or United States' territories.

Expanded Modalities

Under the Guidance, all NYS Medicaid providers in all situations may use a wide variety of communication methods, including providing services via telephone, to deliver healthcare services remotely during the COVID-19 State of Emergency, to the extent it is appropriate for the care of a NYS Medicaid member.

For the purposes of the NYS Medicaid program, telehealth is defined as the use of electronic information and communication technologies to deliver healthcare to patients at a distance. Medicaid covered services provided via telehealth include assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a Medicaid member. The definition of telehealth has been expanded to include telephone conversations for purposes of the State of Emergency.

How NYS defines telemedicine, store-and-forward technology, and remote patient monitoring is unchanged under the Guidance.

Identity Confirmation and Patient Consent Required

Healthcare providers are still required to confirm the NYS Medicaid member’s identity and provide the member with basic information about the services that he/she will be receiving via telehealth/telephone. Written consent by the member is not required. However, telehealth/telephonic sessions/services may not be recorded without the member's consent.


I.  Telephonic

Effective for dates of service on or after March 1, 2020, for the duration of the State Disaster Emergency declared under Executive Order 202, NYS Medicaid will reimburse telephonic assessment, monitoring, and evaluation and management services provided to Medicaid members in cases where face-to-face visits may not be recommended, and where it is appropriate for the Medicaid member to be evaluated and managed by telephone. Telephonic communication will be covered when provided by any qualified practitioner or service provider. Specifically, all telephonic encounters documented as appropriate by the healthcare provider will be considered medically necessary for payment purposes in Medicaid FFS or Medicaid Managed Care. All other requirements in delivery of these services otherwise apply.

Payment for telephonic encounters for healthcare and healthcare support services will be supported in six different payment pathways utilizing the usual provider billing structure. A table provides the billing pathways available for telephonic encounters during the COVID-19 State of Emergency by both FFS and Managed Care.  The Guidance also denotes appropriate modifiers. 

II.  General Billing Guidelines

The Guidance advises that for individuals with Medicare and Medicaid, if Medicare covers the telehealth encounter, Medicaid will reimburse the Part B coinsurance and deductible to the extent permitted by New York state law.

A.  Fee-for Service Billing for Telemedicine by Site and Location (not telephonic)

When healthcare services are provided via telemedicine to a NYS Medicaid member located at an originating site, the healthcare provider should bill for the telemedicine encounter as if the provider saw the member face-to-face using the appropriate billing rules for services rendered. The CPT code for the encounter must be appended with the applicable modifier (“95” or “GT”). 

B.  Hospital Inpatient Billing for Telemedicine (not telephonic) 

When a telemedicine consult is being provided by a distant-site healthcare provider to a member who is an inpatient in the hospital, payment for the telemedicine encounter may be billed by the distant-site physician. Other than physician services, all other practitioner services are included in the All Patient Revised - Diagnosis Related Group (APR-DRG) payment to the facility. 

C. Skilled Nursing Facility Billing for Telemedicine (not telephonic) 

When the telehealth healthcare provider's services are included in the nursing home's rate, the telehealth practitioner must bill the nursing home. If the telehealth practitioner's services are not included in the nursing home's rate, the telehealth practitioner should bill Medicaid as if he/she saw the member face-to-face. The CPT code billed should be appended with the applicable modifier (“95” or “GT”). Healthcare providers providing services via telehealth should confirm with the nursing facility whether their services are in the nursing home rate. 

D. Federally Qualified Health Centers (FQHCs) Billing for Telemedicine (not telephonic) 

FQHCs That Have "Opted Into" APGs: FQHCs that have "opted into" APGs should follow the billing guidance outlined above for sites billing under APGs. FQHCs That Have Not "Opted Into" APGs - FQHC Originating Sites should follow these guidelines: 

a.  When services are provided via telemedicine to a patient located at an FQHC originating site, the originating site may bill only the FQHC offsite services rate code (“4012”) to recoup administrative expenses associated with the telemedicine encounter. 

b.  When a separate and distinct medical service, unrelated to the telemedicine encounter, is provided by a qualified practitioner at the FQHC originating site, the originating site may bill the Prospective Payment System (PPS) rate in addition to the FQHC offsite services rate code (“4012”). 

c.  If a healthcare provider who is onsite at an FQHC is providing services via telemedicine to a member who is in their place of residence or other temporary location, the FQHC should bill the FQHC off-site services rate code (“4012”) and report the applicable modifier (“95” or “GT”) on the procedure code line. 

d. If the FQHC is providing services as a distant-site provider, the FQHC may bill their PPS rate. 

III. Application-Specific Telehealth Billing Rules 


See Telephonic section above. 

A.  Store-and-Forward Technology 

1.  Reimbursement will be made to the consulting distant-site healthcare provider. 

2.  Reimbursement for consultations provided via store-and-forward technology will be paid at 75 percent of the Medicaid fee for the service provided.

3.  The consulting distant-site healthcare provider must provide the requesting originating-site practitioner with a written report of the consultation in order for payment to be made.

4.  The consulting healthcare provider should bill the CPT code for the professional service appended with the telehealth modifier "GQ."

B. Remote Patient Monitoring (RPM)

1. Telehealth services provided by means of RPM should be billed using CPT code "99091" (Collection and interpretation of physiologic data (e.g., Electrocardiography (ECG), blood pressure, glucose monitoring) digitally stored and/or transmitted by the patient and/or caregiver to the physician or other qualified healthcare professional, qualified by education, training and licensure/regulation (when applicable) requiring a minimum of 30 minutes of time).

2. A fee of $48.00 per month will be paid for RPM.

3.  Healthcare providers may not bill "99091" more than one time per NYS Medicaid member per month.

IV.  Medicaid Managed Care Considerations

Medicaid Managed Care (MMC) plans are required to cover, at a minimum, services that are covered by Medicaid fee-for-service and also included in the MMC benefit package, when determined medically necessary. Managed care plans should follow FFS telehealth billing policy included in the Guidance.

The aforementioned information applies to all Medicaid providers and providers contracted to serve Medicaid members under Medicaid managed care plans. Note, however, that the Office of Mental Health (OMH), the Office for People with Developmental Disabilities (OPWDD), and the Office of Addiction Services and Supports (OASAS) have issued separate guidance on telehealth and regulations that will align with state law and Medicaid payment policy for Medicaid members being served under their authority. 

© 2021 Foley & Lardner LLPNational Law Review, Volume X, Number 91

About this Author

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...