September 20, 2020

Volume X, Number 264

September 18, 2020

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New Connecticut Law Extends Telehealth Flexibility

On July 31, 2020, Governor Ned Lamont signed into law, HB 6001 (July Special Session) with a House amendment, “An Act Concerning Telehealth,” temporarily modifying insurance and other requirements for the delivery of telehealth services. The Act codifies into statute numerous measures that Governor Lamont issued through executive orders to enhance use of telehealth services during the COVID-19 public health emergency and makes additional temporary changes applicable to telehealth. 

Following is a summary of the Act’s provisions: 

  • Limited Duration. The Act took effect when the Governor signed it on July 31, 2020, but its provisions are limited in duration, extending until only March 15, 2021.

  • Qualifying Telehealth Providers. The Act applies only to telehealth providers who are (i) in-network providers for fully insured plans or (ii) participating providers in the Connecticut Medical Assistance Program (“CMAP”) when providing health care to a CMAP recipient. It also codifies into law the additional types of health care providers who were authorized to provide telehealth services under the executive orders and includes new provider types as well. Now, the following 31 types of providers are authorized to care for their patients using telehealth services:

Physician

Alcohol and drug counselor

Physician assistant

Professional counselor

Physical therapist

Dietician-nutritionist

Physician therapist assistant

Speech language pathologist

Chiropractor

Respiratory care practitioner

Naturopath

Audiologist

Podiatrist

Pharmacist

Occupational therapist

Paramedic

Occupational therapy assistant

Nurse midwife

Optometrist

Dentist

Registered nurse

Behavioral analyst

Advance practice registered nurse

Genetic counselor

Psychologist

Music therapist

Marital and family therapist

Art therapist

Clinical social worker

Athletic trainer

Master social worker

 

 

 

Moreover, the Act allows any of these providers to provide telehealth services in Connecticut even without a valid Connecticut license, so long as the provider (1) is licensed or certified in another state or territory of the United States or the District of Columbia; (2) is authorized to practice telehealth under any relevant order issued by the Department of Public Health (“DPH”); and (3) maintains professional liability insurance or other indemnity against liability for professional malpractice in an amount that is equal to or  greater than that required for similarly licensed, certified or registered Connecticut health care providers.

Note, however, that the Act explicitly requires any Connecticut entity, institution or health care provider that engages or contracts with a telehealth provider licensed, certified or registered in another state to verify the out-of-state provider’s credentials to ensure the provider is in good standing and carries professional liability insurance or other indemnity at the same level required for similarly licensed, certified or registered Connecticut practitioners.

  • Scope of Telehealth Services. The Act defines “telehealth” consistent with current law, as modified by the Governor’s executive orders: 

    • Telehealth includes interactions between a patient and a provider at a distant site, synchronous (real time) interactions, asynchronous store and forward transfers (when the patient transmits information to the provider for review later), or remote patient monitoring.

    • Telehealth does not include interactions through facsimile, texting or electronic mail, or audio-only telephone, but audio-only interactions are permitted when the telehealth provider is (a) an in-network provider for a commercial health insurance plan or (b) enrolled in CMAP and providing health care to a CMAP recipient. 

  • HIPAA Compliance. Telehealth providers (in-network providers for fully insured plans and providers enrolled in CMAP) must comply with HIPAA, but may utilize “any information and communication technology consistent in accordance with the directions, modifications or revisions,” to HIPAA that are  made by the Office for Civil Rights of the United States Department of Health and Human Services (“OCR”), the federal agency that enforces HIPAA. This language is consistent with Executive Order 7G and ensures that providers can take advantage of the OCR notification of enforcement discretion stating that during the COVID-19 nationwide public health emergency, penalties for HIPAA violations will be waived for “health care providers that serve patients in good faith through everyday communications technologies,” such as Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype.

  • Telehealth Service Delivery.  Under current law, a telehealth provider may only provide telehealth services if the provider (i) communicates through real-time, interactive, two-way communication technology or store and forward technology;  (ii) has access to, or knowledge of, the patient’s medical history as provided by the patient, and the patient’s medical record;  (iii) conforms to the applicable standard of care and (iv) provides the telehealth provider’s license number and contact information. The new law clarifies that telehealth providers may provide telehealth services from any location and additionally requires the telehealth provider to determine whether the patient has health coverage that is fully insured, not fully insured, or provided through Medicaid or the Children’s Health Insurance Program, and whether the patient’s health care coverage extends to telehealth services. 

  • Consent.  As under current law, the Act sets out requirements for notice and consent regarding telehealth services, including the requirement that at the time of the telehealth provider’s first telehealth interaction, the provider inform the patient concerning the treatment methods and limitations of treatment using a telehealth platform. The Act adds that this notice and consent must also include an explanation of the limited duration of the provisions of the Act. This special notice requirement is important to ensure that Connecticut patients receiving care from out-of-state providers understand that the provider’s ability to provide health care services in the State without a Connecticut license is only temporary.

  • Payment for Telehealth Services.   As under current law, the Act prohibits a telehealth provider from charging a facility fee for telehealth services. Consistent with the executive orders, the new law further requires that the telehealth provider accept as payment in full the amount that the patient’s insurance reimburses plus any copayment, coinsurance, deductible or other out-of-pocket expense imposed by the patient’s health coverage.  If the patient does not have health coverage for telehealth, the provider must accept as payment an amount equal to what Medicare reimburses for the service.  If the telehealth provider determines that the patient is unable to pay, the provider must offer financial assistance if the provider is required to do so under state or federal law.

  • Insurance Coverage Requirements.  The Act requires that individual health insurance policies and group health insurance policies in effect at any time between the effective date and March 15, 2021 must provide coverage for medical advice, diagnosis, care or treatment provided through telehealth to the same extent coverage is provided for these services based on an in-person encounter.  These policies may not at any time during this period exclude coverage for services appropriately provided through telehealth and may not exclude coverage for a telehealth platform that an in-network provider selects.

  • Prohibition on Reducing Provider Reimbursement.  While the Act is in effect (until March 15, 2021), no health care carrier may reduce the amount of reimbursement paid to a telehealth provider for covered health care or health services provided through telehealth because the service was not provided in person.

  • Authorization for Medicaid Program to Cover Audio-Only Telehealth. The Act authorizes the Commissioner of Social Services to provide coverage under CMAP for audio-only telehealth services from the effective date through March 15, 2021.

In addition to telehealth flexibility provisions, the Act also permits pharmacies to transfer controlled substance prescriptions so long as the initial pharmacy that first receives the prescription and the pharmacy that receives the transferred prescription follow certain documentation requirements, and the initial pharmacy takes measures to prevent the prescription from being filled at any pharmacy other than the pharmacy to which the prescription is transferred.

Finally, the Act includes a provision that confers broad discretion on the Commissioner of Public Health to temporarily waive, modify or suspend any regulatory requirements adopted by the Commissioner or any of the health practitioner boards or commissions as the Commissioner deems necessary to reduce the spread of COVID-19 and to protect the public health.

© 1998-2020 Wiggin and Dana LLPNational Law Review, Volume X, Number 217

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Michelle Wilcox DeBarge Healthcare and Cybersecurity/Privacy Attorney Wiggin & Dana Law Firm Hartford Connecticut
Partner

Michelle has spent over 25 years helping clients manage their legal risk so that they can focus on their mission and key business objectives.

A former executive in the nonprofit sector, Michelle chairs Wiggin and Dana’s HIPAA Practice Group and co-chairs the Cybersecurity and Privacy Practice Group. She also chairs the Clinical Research Regulation and Compliance Practice Group and is a member of the firm’s Health Care and Biotechnology and Life Sciences Practice Groups.

Highly regarded for analytical and people skills...

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Jody Erdfarb Corporate litigation lawyer Wiggin Dana
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Jody is a Partner in Wiggin and Dana's Health Care Department, where she advises a wide range of health care organizations such as hospitals, long-term-care providers, dental practices, behavioral health clinics, individual practitioners, and information technology companies. She advises on a broad range of issues, including compliance, fraud and abuse, False Claims Act, HIPAA, patient care, regulatory, and corporate matters.

Jody relies on her broad range of knowledge to provide clients with the best possible support. Her experience includes assisting providers with state and federal survey issues, including handling compliance and informal dispute resolution meetings and appealing deficiencies with the Centers for Medicare and Medicaid Services; managing Medicaid audits; and responding to governmental subpoenas. She assists clients in developing and evaluating corporate compliance programs, HIPAA policies, and managing compliance issues, including conducting internal investigations, submitting self-disclosures, and negotiating with government authorities.

Jody is actively involved in the health law community. She is a member of the American Health Lawyer's Association (AHLA), the Connecticut Health Lawyer's Association, the American Bar Association (ABA) Health Law section, the International Association of Privacy Professionals (IAPP), and the Health Care Compliance Association (HCCA). She is the AHLA Vice Chair for the Health Information Technology Practice Group's Digital Health Records Affinity Group and is on the editorial board of the AHLA's Federal Healthcare Laws & Regulations. Jody formerly served on the ABA Health Law Section's taskforce on HITECH and in the AHLA's Leadership Development Program and is an adjunct professor at Quinnipiac University School of Law.

Jody received her J.D. with honors from the University of Connecticut School of Law, where she was an Associate Editor of the Connecticut Journal of International Law, a Dean's Scholar, and the recipient of several CALI awards. Jody won first place in the school's annual Hastie Moot Court Competition for best brief.

203-363-7608
 Maureen Weaver Partner New Haven Home Health Care And Hospice, Regulatory And Reimbursement, Health Care
Partner

Maureen is recognized as a leading health care lawyer at both the state and national levels. She chairs the firm’s Health Care Practice Group and advises health care providers on complex regulatory, patient care, reimbursement, compliance, operational, and corporate matters. She was the firm’s first female Managing Partner and served as a member of the firm’s Executive Committee for many years.

She has been an effective advocate for clients because she understands both the law and the business challenges of health care. She helps hospitals, provider networks, long-term care...

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