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Volume XI, Number 268

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New Connecticut Law Extends Telehealth Flexibility and Mandates Insurance Payment Parity for Telehealth Services

Governor Ned Lamont recently signed into law Public Act 21-9, “An Act Concerning Telehealth” (the “Act”), extending the relaxed telehealth provisions that were previously enacted via executive orders in response to the COVID-19 pandemic. The Act took effect on May 10, 2021 and will expire on June 30, 2023. The Governor had previously signed into law a similar Public Act, Public Act 20-2, which also had a limited duration and was in effect only from July 31, 2020 to March 15, 2021.

Governor Lamont’s executive orders pertaining to telehealth and Public Act 20-2 provided flexibility for health care providers in order to enhance use of telehealth services during the pandemic, in an effort to slow the spread of COVID-19 while allowing patients continued and uninterrupted access to health care. The new Act provides for the continuation of this flexibility. In addition, the Act mandates insurance coverage for telehealth services and prohibits insurers from reducing the amount of reimbursement paid to telehealth providers for appropriately provided services that were rendered via telehealth instead of in-person.

Following is a summary of the Act’s provisions:

Telehealth Services

The Act defines telehealth as the mode of delivering health care or other health services via information and communication technologies to “facilitate the diagnosis, consultation and treatment, education, care management and self-management of a patient’s physical, oral and mental health.” The definition goes on to state that telehealth includes “interaction between the patient at the originating site and the telehealth provider at a distant site, synchronous interactions, asynchronous store and forward transfers or remote patient monitoring.”

However, according to the Act, telehealth does not include interactions through facsimile, texting or electronic mail, or audio-only telephone, except that audio-only interactions are included when the telehealth provider is (a) an in-network provider or (b) enrolled in the Connecticut Medical Assistance Program and providing health care to a Connecticut Medical Assistance Program recipient. 

Telehealth Providers

The Act is applicable only to those practitioners that fall within the Act’s definition of a telehealth provider.

In accordance with the Act, “telehealth provider” means any practitioner who is (1) an in-network provider or (2) a provider enrolled in the Connecticut Medical Assistance Program and providing health care to a Connecticut Medical Assistance Program recipient. 

In addition, the following Connecticut-licensed practitioners are included in the Act’s definition of a telehealth provider:

  • Physicians

  • Physician assistants

  • Physical therapists

  • Physical therapist assistants

  • Chiropractors

  • Naturopaths

  • Podiatrists

  • Occupational therapists

  • Occupational therapy assistants

  • Optometrists

  • Registered nurses

  • Advanced practice registered nurses

  • Psychologists

  • Marital and family therapists

  • Clinical social workers

  • Master social workers

  • Alcohol and drug counselors

  • Professional counselors

  • Dietitian-nutritionists

  • Speech and language pathologists

  • Respiratory care practitioners

  • Audiologists

  • Pharmacists

  • Paramedics

  • Nurse-midwives

  • Dentists

  • Behavior analysts

  • Genetic counselors

  • Music therapists

  • Art therapists

  • Athletic trainers

These types of practitioners who do not hold a Connecticut license are also included in the definition of a telehealth provider under the Act, provided that the practitioner (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; 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 that the Act requires any Connecticut entity, institution, or provider that engages or contracts a telehealth provider licensed in another state to provide telehealth services, to verify the out-of-state provider’s credentials, ensure that the provider is in good standing in that state, and confirm that the provider maintains the requisite amount of appropriate insurance or other indemnity against liability for professional malpractice.  

Summary of Key Requirements

To provide telehealth services lawfully in Connecticut, telehealth providers, as defined by the Act, must meet certain requirements:

  • Preliminary requirements. A telehealth provider may provide telehealth services only when the provider:

    • Is communicating through real-time, interactive, two-way communication technology, or store and forward transfer technology;

    • Has determined whether the patient has health coverage and whether the patient’s health coverage, if any, provides coverage for the telehealth services;

    • Has access to, or knowledge of, the patient’s medical history, as provided by the patient, and the patient’s health record, including the name and address of the patient’s primary care provider, if any;

    • Conforms to the standard of care applicable to the profession and expected for in-person care as appropriate to the patient’s age and presenting condition (Note that where the standard of care requires diagnostic testing and a physical examination, the testing or examination may be carried out through the use of peripheral devices appropriate to the patient’s condition.); and

    • Provides the patient with the provider’s license number, if any, and contact information.

  • Notice and consent. At the time of the first telehealth interaction, telehealth providers are required to inform the patient concerning the treatment methods and limitations of treatment using a telehealth platform, including, but not limited to, the limited duration of the Act’s provisions (through June 30, 2023). After providing the patient with this information, the telehealth provider must obtain the patient’s consent to provide telehealth services. The notice and consent must be documented in the patient’s medical record and any subsequent revocation of consent must be documented as well. Any consent or revocation must be obtained from the patient, the legal guardian, conservator or other authorized representative, as applicable. 

  • Disclosure of records to primary care provider. Also at the time of the first telehealth interaction, telehealth providers are required to ask if the patient consents to the provider’s disclosure of records pertaining to the telehealth interaction to the patient’s primary care provider. If consent is obtained, the telehealth provider must provide the records to the primary care provider, in accordance with Connecticut law.

  • Prescribing practices. Telehealth providers may not prescribe, through the use of telehealth, any schedule I, II or III controlled substance; however, schedule II or III controlled substances, other than an opioid drug, may be prescribed for the treatment of a person with a psychiatric disability or substance use disorder in a manner fully consistent with the Ryan Haight Online Pharmacy Consumer Protection Act. Any schedule II or III controlled substance that is prescribed must be electronically submitted pursuant to Connecticut law.

  • HIPAA compliance. Telehealth providers must continue to act in compliance with HIPAA, as applicable, 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.

  • Prohibition on facility fees. Telehealth providers may not charge a facility fee for telehealth services. Facility fee is defined as any fee that is distinct from a professional fee that is charged or billed by a hospital or health system for outpatient services provided in a hospital-based facility that is intended to compensate the hospital or health system for the operational expenses of the hospital or health system.

  • Payment. If the telehealth provider determines that the patient does not have health coverage for telehealth services, then the provider must accept as payment in full for the telehealth services, an amount equal to the amount that Medicare reimburses for such services. However, if the telehealth provider determines that the patient has health coverage for telehealth services, then the provider must accept as payment in full for the telehealth services the amount that the patient’s health coverage reimburses, and any coinsurance, copayment, deductible or other out-of-pocket expense imposed by the patient’s health coverage. If a telehealth provider determines that the patient cannot pay for telehealth services, the provider must offer financial assistance, if the provider is otherwise required to offer financial assistance under any applicable state or federal law.

  • Location. The Act states that a telehealth provider may provide telehealth services, in accordance with the Act’s provisions, from any location. Public Act 21-133 added that the ability to provide telehealth services from any location is subject to compliance with all applicable federal requirements and notwithstanding any provision of the Connecticut General statutes, state licensing standards, or any state regulation.

  • Not prohibited. The Act makes clear that it does not prohibit providers from (1) providing on-call coverage pursuant to an agreement with another provider; (2) consulting with another health care provider concerning a patient’s care; (3) ordering care for hospital outpatients or inpatients; or (4) using telehealth for a hospital inpatient, including for the purpose of ordering medication or treatment for such patient, in accordance with applicable law.

Health Insurance Parity

Aside from imposing requirements on providers of telehealth, the Act further imposes telehealth payment requirements on health insurers, specifically individual and group health insurance policies that provide coverage for (1) basic hospital expense coverage; (2) basic medical-surgical expense coverage; (3) major medical expense coverage; (4) hospital or medical service plan contract; or (5) hospital and medical coverage provided to subscribers of a health care center. 

Any such policies must provide insurance coverage for telehealth services, to the same extent that coverage is provided for such services when provided to the insured in-person. Moreover, insurers are prohibited from excluding coverage for a telehealth service merely because the service is provided through telehealth or a telehealth platform selected by an in-network telehealth provider. The Act additionally prohibits health insurers from reducing the amount of reimbursement paid to a telehealth provider for telehealth services merely because the telehealth provider provided the services through telehealth.

Other Provisions

  • Department of Public Health Waivers. The  Act authorizes the Commissioner of Public Health to temporarily waive, modify or suspend any regulatory requirements, as the Commissioner deems necessary to reduce the spread of COVID-19 and to protect public health for the purpose of providing Connecticut residents with telehealth services from out-of-state practitioners.

  • Medicaid and the Children’s Health Insurance Program. The Act authorizes the Commissioner of Social Services to provide coverage under Connecticut Medicaid and/or the Children’s Health Insurance Program for audio-only telehealth services. In addition, Public Act 21-133 added language to this provision qualifying that the Commissioner may make such coverage determinations only when (1) clinically appropriate, as determined by the Commissioner, (2) it is not possible to provide comparable covered audiovisual telehealth services, and (3) the services are provided to individuals who are unable to use or access comparable, covered audiovisual telehealth services. The Commissioner is required, to the extent permissible under federal law, to provide Medicaid reimbursement for services provided by means of telehealth to the same extent as if the service was provided in-person.

  • Medical marijuana. A physician or APRN may issue a written certification to a qualifying patient for medical marijuana and provide any follow-up care using telehealth services during the period beginning on May 10, 2021 and ending on June 30, 2023, provided all other requirements for issuing the written certification to the qualifying patient and all recordkeeping requirements are satisfied.

Next Steps

In light of the Act’s passage, telehealth providers who provide telehealth services, as defined by the Act, should examine their policies, procedures and actual practices to ensure that they are compliant with the Act’s requirements.  For example, telehealth providers should ensure that they are:

  • Verifying the credentials and insurance coverage of any contracted out-of-state telehealth provider.

  • Utilizing appropriate telehealth technology (real-time, interactive, two-way communication or store and forward technology).

  • Making determinations regarding each patient’s insurance coverage for telehealth.

  • Obtaining patients’ medical histories and providing telehealth patients with the provider’s license number and contact information.

  • At the first telehealth interaction, informing patients of telehealth treatment methods and limitations, inquiring if the patient consents to the provider’s disclosure of records to the patient’s primary care provider, and obtaining and documenting patient consent.

  • Utilizing appropriate payment practices, including accepting the Medicare rate for the service as payment in full if the patient does not have telehealth insurance coverage and accepting the insurance rate and any applicable coinsurance, copayment, or deductible as payment in full if the patient has telehealth insurance coverage.

Telehealth providers should also note that while the new Act has a limited duration of May 10, 2021 to June 30, 2023, health care practitioners using telehealth must also comply with the requirements in Connecticut General Statutes §19a-906, which was promulgated in 2015 and will remain in effect after the current Act sunsets.

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume XI, Number 215
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About this Author

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...

203-498-4312
Jody Erdfarb Corporate litigation lawyer Wiggin Dana
Partner

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...

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...

203-498-4384
Karen Rabinovici Attorney Health Care Law Wiggin and Dana Law Firm New Haven
Associate

Karen Rabinovici is an Associate in Wiggin and Dana’s Health Care and Corporate Departments and is based in the New Haven office.  Prior to joining Wiggin and Dana, Karen was a health law associate at firms in Hartford and Boston and served as in-house counsel for a Massachusetts health system.

Karen has provided counsel to a variety of health care providers including health systems, hospitals, home health agencies, physicians and physician groups on various matters such as transactions, including acquisitions, sales, mergers and affiliations;...

203-498-4412
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