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States Move to Make Permanent COVID-19 Telehealth Waivers

In response to the COVID-19 pandemic, all states, to some degree, have eased or waived their state-imposed telehealth restrictions to expand the ability for individuals to access telehealth services. This includes requirements for Medicaid programs and state-licensed health insurers to reimburse providers on an expanded list of telehealth services, often at same rates as they would pay for the same service furnished inperson. Though much of the easing of restrictions is temporary and tied to the duration of each states’ Public Health Emergency (“PHE”) declaration, some states and health insurers are endeavoring to make such changes permanent. The use of telehealth during the pandemic has led to unprecedented advances in access to healthcare and has strengthened the capacity of the healthcare workforce. As these waivers move to permanency, providers have a unique opportunity build longer-term strategies to provide (and be reimbursed for) an expanded array of telehealth services to patients.

Governors and state agencies leaped to action in response to the COVID-19 public health crisis, and, amongst many other things, immediately waived restrictions placed on the provision of telehealth services, while also placing certain mandates on third-party payers. By way of example, the following is a general list of temporary measures and payer mandates instituted by many states at the outset of the crisis:

  • Lifting the requirements for providers to have pre-existing relationships with patients prior to providing telehealth services;

  • Permitting facilities such as Federally Qualified Health Centers (“FQHCs”), psychiatric hospitals, and behavioral health facilities and other licensed professionals such as mid-level practitioners and physical, occupational and speech therapists to bill and be reimbursed for telehealth services;  

  • Instituting requirements for third-party payers to reimburse an expansive list of covered telehealth services, provided that the covered telehealth services being provided are medically appropriate for that medium;

  • Allowing telehealth services to be provided through both synchronous and asynchronous technologies that allow for real-time, interactive consultations between the provider and patient, provided that such technologies comply with HIPAA privacy and security requirements; and  

  • Mandating third-party payers to reimburse providers for covered telehealth services at the same rate of reimbursement as in-person services.

Consumers and providers alike have lauded these temporary measures and it will be difficult to unwind some of these measures once the COVID pandemic is resolved. As such, it is likely that states will work to permanently cement many of these changes.

On June 22, 2020, Idaho Governor Brad Little signed an Executive Order requesting that its State agencies work to finalize the temporary telemedicine rule changes to become effective in 2021. Additionally, on July 6, 2020, Colorado Governor Jared Polis signed into law a bill that prohibits Colorado licensed health insurers from: 1) imposing specific requirements or limitations on the HIPAA-compliant technologies used to deliver telehealth services; 2) requiring a covered person to have a previously established patient-provider relationship with a specific provider in order to receive medically necessary telehealth services from that provider; and 3) imposing additional certification, location, or training requirements as a condition of reimbursement for telehealth services. Also, for purposes of the State Medicaid Program, this bill requires the State to reimburse rural health clinics, the federal Indian health service, and FQHCs for telemedicine services provided to Medicaid recipients at the same rate as the State reimburses those services when provided in-person.

Some commercial payers have taken the initiative themselves to make permanent telehealth policy changes that were originally meant to be temporary. In March 2020, Blue Cross Blue Shield of Tennessee (“BCBS TN”) began temporarily covering telephone and video visits with its in-network providers. The change initially included primary care providers, specialists and behavioral health providers and was later expanded to include occupational, physical and speech therapists as well as ABA therapy services. Moving forward, BCBS TN will continue to cover these services on an ongoing basis.

Providers should remain current on these temporary measures that state and/or third-party payers have sought or will seek to make permanent. By purposefully evolving a practice or facility to take full advantage of the loosening of prior telehealth restrictions and mandates to third-party payers, practices and facilities can: 1) gain access to a greater population of patients, 2) provide or expand upon the scope of telehealth services that they may not have otherwise been permitted to bill and be reimbursed for, and 3) direct resources to the most cost-effective means of providing services depending on how a third-party payer is required to reimburse telehealth services as opposed in-person services.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 295
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About this Author

Ebahullah Ebad Khan Health Care Attorney
Associate

Ebadullah (Ebad) Khan focuses his practice on delivering practical legal recommendations to clients to help them solve health care related matters, maintain compliance with state and federal laws, and address reimbursement issues with commercial health insurance companies. Ebad works with Polsinelli attorneys to ensure hospitals, ambulatory surgical centers, free-standing ERs, and other health care organizations comply with applicable regulations such as HIPAA/HITECH, Stark Law, the Anti-Kickback Statute, and the Texas Patient Solicitation Act. Ebad also works with health care...

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