September 27, 2021

Volume XI, Number 270

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September 24, 2021

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New York Ends Telehealth Waivers; Issues New Medicaid Guidance

New York’s telehealth emergency waivers have expired, according to a June 25, 2021 announcement issued by Governor Andrew Cuomo’s Office declaring the waivers (contained in Executive Orders 202 through 202.11 and 205 through 205.3) are no longer necessary. Concurrent with the Governor’s announcement, the New York State Department of Health issued a guidance document on the New York Medicaid program’s continued coverage of telehealth services for the duration of the federal Public Health Emergency (PHE). The guidance is designed to maintain the ability of Medicaid providers to use telemedicine and digital health to deliver health services for the remainder of the federal PHE. The guidance will remain in effect until the federal PHE expires or the Department of Health issues permanent Medicaid telehealth rules, whichever comes first. The guidance also may be a preview of additional guidance to be issued in the near future regarding telehealth in New York State beyond the Medicaid Program.

This article discusses the top five highlights in the New York Medicaid telehealth guidance.

1. Scope of Telehealth Services

  • Telehealth Definition: The term telehealth is broadly defined as “the use of electronic information and communication technologies to deliver health care to patients at a distance.” Medicaid-covered telehealth services include assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a Medicaid patient. During the PHE, “telehealth” includes telephonic, telemedicine, store and forward, and remote patient monitoring. The guidance uses the term “telemedicine” to denote two-way audiovisual communication.

  • Originating Site Restrictions: An originating site is where the Medicaid patient is located at the time health care services are delivered to him/her by means of telehealth. Originating sites during the PHE can be anywhere the member is located including the member’s home.

  • Distant Site Restrictions: A distant site is the site where the telehealth provider is located while delivering health care services by means of telehealth. During the PHE, any site within the fifty United States or United States’ territories, is eligible to be a distant site for delivery and payment purposes. This includes Federally Qualified Health Centers and providers’ homes.

2. Expansion of Eligible Providers

During the PHE, any provider authorized to deliver Medicaid billable services is eligible to provide services via telehealth, so long as the services are appropriate for telehealth and within the provider’s scope of practice. Providers must still comply with HIPAA and all other relevant privacy and security laws when delivering care remotely.

3. Consent and Recording

Providers must confirm the patient’s identity and provide the patient with basic information about the services the patient will receive via telehealth. The patient need not give written consent to telehealth services, but if verbal consent is given the provider should document this in the medical record. Providers cannot record telehealth sessions without the patient's consent.

4. Billing Rules for Telephonic (Audio-Only), Asynchronous, and Remote Patient Monitoring Services

The Medicaid program will cover telephonic services during the federal PHE. Telephonic service is “two-way electronic audio-only communications to deliver services to a patient at an originating site by a telehealth provider located at a distant site.” The guidance provides detailed billing instructions and a 2-page table setting forth in detail the billing and coding rules, along with modifiers, for telephonic services. The guidance also expands and elaborates previous rules for billing and coverage of two-way audiovisual communication, store and forward, and remote patient monitoring.

5. Specialty Program Requirements Still Apply

The Medicaid guidance document applies to all Medicaid providers under the Medicaid FFS program and Medicaid managed care plan contracts. However, other State agencies have also issued their own separate guidance on telehealth standards and practice. If a provider’s specialty area renders them subject to licensure or registration with one of these agencies, those rules will apply in addition to the Medicaid reimbursement rules. The Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Addiction Services and Supports, and the Office of Children and Family Services have issued their own guidance materials and regulations. Providers should review these carefully.

Note: We'd like to thank Caitlin Otis, summer associate, for her contributions to this post.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 181
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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm
Partner

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. 

813-225-4127
Jeffrey Thrope, Foley Lardner, public finance practice, health care attorney, not-for-profit organizations counsel, healthcare compliance lawyer
Partner

Jeffrey C. Thrope is a partner and health care business lawyer with Foley & Lardner LLP. Mr. Thrope has a broad range of experience as a general counsel to the health care and related industries, as well as not-for-profit organizations and governments. He is a member of the Health Care Industry Team, as well as the Public Finance Practice.

In addition to his considerable experience in helping public and safety-net hospitals develop operational and financing plans necessary to their survival, Mr. Thrope has provided advice and counsel in...

212-338-3568
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