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Telehealth: Massachusetts’ Proposed Act to Improve Health Care by Investing in Value

Massachusetts Governor Charlie Baker has restarted the discussion on health care cost containment in the Commonwealth with a proposed bill that contains a raft of initiatives. Foley & Lardner LLP will be addressing each of the key initiatives in separate blog posts over the coming weeks to invite discussion and testing of the proposals.

Click HERE to read about the Proposed Facility Fee Ban.
Click HERE to read about the Proposed Massachusetts Primary and Behavioral Health Care Spending Requirement.
Click HERE to read about the MA Proposed Reporting Requirements for Drug Pricing Transparency.
Click
HERE to read about the Proposed Access & Coverage of Behavioral Health & Substance Abuse Services.

As we have already discussed in the linked previous posts above, Massachusetts Governor Charlie Baker introduced the bill The Act to Improve Health Care by Investing in Value on October 18, 2019. One of the Governor’s goals with this bill is to enhance primary care and behavioral health services by increasing investments while requiring overall spending to stay within the parameters of the state’s overall health care cost growth benchmark. In order to achieve these goals, this bill expands both access to and coverage of telehealth.

Telehealth is an approach to clinical practice that breaks down the barriers preventing access to clinical care by allowing practitioners to remotely diagnose, treat, or monitor patients. While enabling access to care, aligning the regulatory and coverage policies applicable to telehealth also makes delivery of telehealth services more affordable for patients in the Commonwealth.

Access to Telehealth

The proposed bill expands access to telehealth in following major ways.

  • In the proposed bill, telehealth includes “the use of synchronous or asynchronous telecommunications” by a telehealth provider and includes a variety of services including assessment, diagnosis, consultation, treatment, and monitoring of a patient.

  • Unlike Massachusetts Medicaid Program’s All Provider Bulletin (discussed here), telehealth is not limited to only interactive audio-video, but instead also allows live video, text messaging and application-based communication. Consistent with Massachusetts’ current laws, telehealth does not include audio-only telephone calls, e-mail messages, or facsimile transmissions. See Mass. Gen. Laws. Ann. Ch. 175 § 47BB.

  • Third, and most notably, the Act does not require an in-person consultation to establish the practitioner/patient relationship prior to the use of telehealth to deliver care. By removing the requirement for a prior in-person visit, the Act would allow patients to receive care from health care providers via telehealth without the imposition of a required in-office meeting prior to receiving care, which can lead to delayed care or failure to receive care in some instances.

Therefore, the Act broadens the types of telehealth services, expands telehealth’s modalities, and relaxes traditional prerequisites to telehealth consultations, all improving the ability of patients to access telehealth services

Coverage Expansion

As discussed here, the Massachusetts Medicaid Program’s All Provider Bulletin enabled MassHealth-participating Community Health Centers, Community Mental Health Centers, and Outpatient Substance Use Disorder providers to enjoy Medicaid coverage and reimbursement of certain mental health and substance use disorder services delivered via telehealth. However, Massachusetts law currently allows insurers to limit coverage of telemedicine services to those health care providers in a telemedicine network approved by the insurer. Id. In other words, Massachusetts law does not currently require a commercial insurer to cover health care services delivered via telehealth.

If passed, the Act would now prevent commercial insurers, medical service corporations, health maintenance organizations, and hospital services corporations from declining health care services solely because those services were delivered through telehealth provided the service would have been covered by way of in-person consultation and the service can appropriately be provided by telehealth.

Moreover, the Act requires the state’s Group Insurance Commission (GIC) to cover telehealth services. GIC provides and administers health insurance and other benefits to the Commonwealth’s employees and retirees, and their dependents and survivors.

In all cases, a contract that provides coverage for health care services may contain a provision for a deductible, copayment or coinsurance requirement for a health care service provided through telehealth as long as the deductible, copayment or coinsurance does not exceed the deductible, copayment or coinsurance applicable to an in-person consultation. Additionally, coverage for a telehealth service will not be required if that service is not a covered benefit under the plan.

By preventing insurers from denying or limiting coverage for health care services due to the delivery of care via telehealth, more patients will have the ability to receive covered telehealth services. Moreover, if enacted, the expanded access and coverage of telehealth services will bring Massachusetts in line with how many other states are approaching access and coverage of telehealth services.

© 2020 Foley & Lardner LLP

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About this Author

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...

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