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The Good and the Bad of the New MassHealth Telemedicine Rule

The Massachusetts Medicaid Program (known locally as MassHealth) issued a new All Provider Bulletin in January, setting forth new policies for certain behavioral health services delivered to MassHealth covered patients.  The guidance received mixed responses from the telehealth industry.

  • The good: MassHealth-participating Community Health Centers, Community Mental Health Centers, and Outpatient Substance Use Disorder providers can enjoy Medicaid coverage and reimbursement of certain mental health and substance use disorder services delivered via telehealth.
  • The bad: only interactive audio-video is covered, and the bulletin imposes a variety of telehealth practice standards (including written policies and training program conditions) that are not required under Massachusetts professional licensing laws and which do not apply to Massachusetts providers outside the MassHealth program. It also requires ongoing in-person exams when prescribing controlled substances, as an additional layer on top of the federal Ryan Haight Act

The MassHealth coverage of telehealth-based mental health services went live January 1, 2019.  Providers who submit claims for services delivered via telehealth must use place of service code 02.  There is no originating site facility fee available.  The telehealth modality must “conform to industry-wide compressed audio-video communication standards for real-time, two-way, interactive audio-video transmission.”  Asynchronous or interactive audio with store & forward is not an eligible modality under the bulletin.  Only behavioral health professionals who have been trained in the provision of services via telehealth, including training in the use of the telehealth equipment, may provide telehealth services.  Moreover, providers delivering services via telehealth must have a training program in place to ensure the competency of all staff members involved in the delivery of services via telehealth.

With regard to prescribing controlled substances, the bulletin’s recurring in-person exam requirement erects a hurdle even higher than the federal Ryan Haight Act.  In order to prescribe Schedule II controlled substances, telehealth prescribers must conduct an initial in-person exam plus recurring in-person exams every 3 months while that provider is prescribing medication to the patient.  The ongoing examinations may be performed by a primary care provider if the results of the examination are shared with the telehealth prescribing provider.  This requirement could undermine the access to care benefits typically enjoyed by patients who use telehealth for their mental health and substance use disorder treatment.  It could represent an even more glaring obstacle once the DEA’s forthcoming telemedicine special registration rules are promulgated later this year.

Read the entire MassHealth All Provider Bulletin 281 and its requirements here.

© 2020 Foley & Lardner LLPNational Law Review, Volume IX, Number 63


About this Author

Alexandra B. Shalom, Foley Lardner, law graduate, health care law, Boston, Anti-Defamation League New England Associate Board.
Law Graduate

Alexandra (Allie) Shalom is a law graduate with Foley & Lardner LLP. Ms. Shalom is a member of the firm’s Health Care Practice.

Ms. Shalom served as a summer associate in the firm’s Boston office, where she gained experience in the area of health care. Previously, she was a student intern at Health Law Advocates and a legal intern at Beth Israel Deaconess Medical Center in the Office of the General Counsel.

Kyle Faget, Foley Lardner, Government policy lawyer
Special Counsel

Kyle Faget is a special counsel 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 the firm, Kyle held in-house positions at pre-commercial and commercial stage companies.

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.