In the recently published fall update of the fifth annual edition of its telehealth report, the Center for Connected Health Policy, the federally designated National Telehealth Policy Resource Center, provides a current summary guide to telehealth-related laws, regulations, and policies for all 50 states and the District of Columbia, and tracks a number of telehealth trends. The report offers a revealing glimpse into the scope and complexity of state laws and policies governing telehealth. The authors conclude, however, that despite the fact that state laws and Medicaid policies “differ significantly” certain trends are coming into relief. Here are some highlights of the report:

• 48 states and the District of Columbia provide reimbursement for live video consults in their Medicaid fee-for service programs.
• States alternate between the terms “telemedicine” and “telehealth,” and in some states, both terms are explicitly defined in statute or regulation.
• 15 state Medicaid programs reimburse for store-and-forward services.
• 21 Medicaid programs reimburse for remote patient monitoring.
• 36 states and the District of Columbia have laws governing coverage by private payers of telehealth services.
• In the 2017 legislative session, 44 states introduced over 200 telehealth-related pieces of legislation addressing issues such as reimbursement and the standard of care.
• 30 jurisdictions have telehealth informed consent requirements (depending on the state, may apply to Medicaid only, certain specialties, or to all telehealth transactions in the state).
• 22 states are now part of the Federation of State Medical Boards’ Interstate Medical Licensure Compact facilitating multi-state licensure for physicians in those states.
• 32 states reimburse a transmission fee, facility fee, or both.
• 9 state medical/osteopathic medical boards issue special licenses/certificates related to telehealth.

State telehealth parity laws, which generally require private payers (and occasionally Medicaid programs) to cover telehealth services if those services would be covered if provided in-person, have long been trumpeted as a means to increase telehealth acceptance.  The argument is simple: given how the availability of health care services is usually directly tied to whether (and how) payers cover a particular service, laws that require payers to cover telehealth services should drive utilization.  A recently published report, however, questions the impact these laws have on telehealth utilization.

The Center for Connected Health Policy (CCHP), the federally funded national telehealth resource center, conducted a five-month study to analyze state telehealth parity laws and the impact these laws may have on telehealth utilization.  In an interesting twist, the report’s authors also interviewed health plan executives to gain insight into how plans cover and reimburse telehealth services, and the issues preventing greater telehealth utilization.  The report should be required reading for all telehealth stakeholders seeking to understand the telehealth reimbursement landscape.

Here are some key general highlights:

• As of September 2016, 31 states and the District of Columbia have passed telehealth private payer laws.
• How a parity law is drafted can determine “the expansiveness of reimbursement and can predict telehealth utilization.”
• Inclusion/exclusion of certain language may create barriers to telehealth utilization by allowing payers to limit the types of services that may be reimbursed.
• Only 3 states have laws that explicitly require payment parity (meaning payers in these states have to reimburse for telehealth at the same rate as they pay for in-person services).
• Live video is the modality most often referenced in the parity statutory definition of telehealth. Approximately 70 percent of state parity laws reference store-and-forward, and about 55 percent include references to remote patient monitoring.
• Only 4 states and the District of Columbia include a site limitation in their parity laws.
• Unlike the Medicare program, parity laws usually do not include explicit exclusions regarding types of services, types of providers, and geographic locations.

Payer Interviews

As I mentioned, the report’s authors interviewed commercial plan executives, medical officers, and other plan representatives in six states (CA, MS, MT, OK, TX, and VA), resulting in a compelling look into how commercial payers view telehealth.  For plans not participating in interviews, CCHP conducted research regarding their telehealth policies.  Some points to highlight from the interviews:

• The majority of selected plans only reimbursed for live video. Some plans provide limited reimbursement for store-and-forward, but only for certain specialties.
• Remote patient monitoring is not being reimbursed by any of the payers that were part of the study.
• The majority of interviewees confirmed that their plans reimbursed telehealth services at the same rate as in-person services.

Plan interviewees also noted that, notwithstanding the increase in state parity laws, telehealth utilization is generally low.  Among the reasons provided:

• Patients are reluctant to use telehealth, although once they try it, many respond positively.
• Patients have a preference to see physicians and other providers in-person.
• Providers are reluctant to use telehealth for a number of reasons ranging from lack of training, skepticism regarding telehealth, or concerns that they could lose business by providing telehealth.
• Lack of education and awareness regarding the availability and efficacy of telehealth.

Medicaid

CCHP also spoke with Medicaid representatives and concluded that private payer laws have little impact on Medicaid telehealth policies unless the laws explicitly include Medicaid.  The Medicaid representatives also noted that providers face significant challenges in implementing telehealth programs, including the cost of equipment and billing issues.

Moving Forward

While the report acknowledges the promise of telehealth, CCHP concludes that many obstacles remain, including what it describes as “a broad misconception that, because telehealth private payer laws are in place in many states around the country, telehealth is achieving its promise of providing the same patient benefit and payment as in-person care.” Specifically, the report warns that parity laws “have been weakened by their lack of clarity and often contain clauses that may negate much of the intent of the legislation.”  The report encourages more careful drafting of laws and a more comprehensive implementation plan.  CCHP concludes by asking policymakers to consider, among other things, the following steps:

• Using explicit language in private payer laws.
• Ensuring that payment or reimbursement parity language is included in the language of these laws assuming it is the intent of policymakers to have telehealth reimbursed at the same rate as in-person services.
• Developing a comprehensive Medicaid telehealth policy.

Conclusion

I believe the report is significant for two reasons.  First, it dispels the notion that the existence of state parity laws alone will drive greater telehealth utilization.  As the report makes clear, some of this is due to poorly drafted laws in some states—but I believe that much of the disconnect between parity laws and telehealth utilization is tied to broader issues regarding telehealth utilization generally. The lack of knowledge and education on the part of consumers regarding telehealth, for example, is as big a stumbling block as any other. Second, it appears that while plans have bought into the benefits of telehealth they are cautious regarding how to drive utilization. The report points out that most plans prefer a slower approach to telehealth expansion and favor using methods such as pilot projects to assess potential expansion.

Consistent with what we have been seeing in our own practice, and consumers’ growing demand for better access to telemedicine services, a bi-partisan movement is growing in both houses of Congress to expand telehealth services, improve health outcomes, and reduce healthcare costs. On Wednesday February 5, 2016, U.S. Senators Brian Schatz (D-Hawaii), Roger Wicker (R-Miss.), Thad Cochran (R-Miss.), Ben Cardin (D-Md.), John Thune (R-S.D.), and Mark Warner (D-Va.) introduced the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act (s. 2484), which seeks to overhaul Medicare’s treatment of the practice of telemedicine and its related technologies. Companion legislation was introduced in the House of Representatives by U.S. Reps. Diane Black (R-TN), Peter Welch (D-VT), and Gregg Harper (R-MS). According to the Senate bill’s sponsors, the CONNECT for Health Act would:

1. Create a bridge program to help providers transition to the goals of the Medicare Access and CHIP Reauthorization Act (MACRA) and the Merit-based Incentive Payment System (MIPS) through using telehealth and RPM without most of the 1834(m) restrictions contained in the aforementioned Senate bill;
2. Allow telehealth and Remote Patient Monitoring to be used by qualifying participants in alternative payment models, without most of the aforementioned 1834(m) restrictions;
3. Permit the use of remote patient monitoring for certain patients with chronic conditions;
4. Allow, as originating sites, telestroke evaluation and management sites; Native American health service facilities; and dialysis facilities for home dialysis patients in certain cases;
5. Permit further telehealth and RPM in community health centers and rural health clinics;
6. Allow telehealth and RPM to be basic benefits in Medicare Advantage, without most of the aforementioned 1834(m) restrictions; and
7. Clarify that the provision of telehealth or RPM technologies made under Medicare by a health care provider for the purpose of furnishing these services shall not be considered “remuneration.”

So far, the following organizations have publically endorsed the bill:

• AARP
• ACT | The App Association
• Airstrip
• Alliance for Aging Research
• Alliance for Connected Care
• Alliance of Community Health Plans (ACHP)
• Alzheimer’s Foundation of America
• America’s Essential Hospitals (AEH)
• America’s Health Insurance Plans (AHIP)
• American Academy of Neurology (AAN)
• American Academy of Physician Assistants (AAPA)
• American Association of Diabetes Educators (AADE)
• American Heart Association/American Stroke Association (AHA)
• American Medical Association (AMA)
• American Medical Group Association (AMGA)
• American Nurses Association (ANA)
• American Occupational Therapy Association (AOTA)
• American Osteopathic Association (AOA)
• American Psychological Association (APA)
• American Society of Nephrology (ASN)
• American Telemedicine Association (ATA)
• American Well
• Anthem
• Association for Ambulatory Behavioral Healthcare
• Association for Behavioral Health and Wellness (ABHW)
• CAPG
• Cerner
• DaVita
• Federation of State Medical Boards (FSMB)
• Hawaii Medical Service Association (HMSA)
• Health Care Chaplaincy Network
• Healthcare Leadership Council (HLC)
• Healthcare Information and Management Systems Society (HIMSS)
• Intel
• Kaiser Permanente
• LifeWIRE
• NAADAC
• National Association for Home Care & Hospice
• National Association for the Support of Long Term Care (NASL)
• National Association of ACOs (NAACOS)
• National Association of Community Health Centers (NACHC)
• National Council for Behavioral Health
• National Council of State Boards of Nursing (NCSBN)
• National Health IT Collaborative for the Underserved
• Personal Connected Health Alliance (PCHA)
• Population Health Alliance
• Qualcomm Incorporated (and Qualcomm Life)
• Telecommunications Industry Association (TIA)
• The ERISA Industry Committee (ERIC)
• The Evangelical Lutheran Good Samaritan Society
• The Jewish Federations of North America
• Third Way
• University of Mississippi Medical Center (UMMC) Center for Telehealth
• University of Pittsburgh Medical Center (UPMC)
• University of Virginia (UVA) Center for Telehealth

The full text of the bill can be found here.

On July 7, 2015, U.S. Reps. Mike Thompson, Gregg Harper, Diane Black, and Peter Welch announced the introduction of a new version of the July 2014 telehealth legislation (H.R. 5380) called the Medicare Telehealth Parity Act of 2015 (H.R. 2948) (the “Act”). The Act has already been referred to each of the House Energy and Commerce Committee and the House Committee on Ways and Means.

According to Congressman Thompson’s press release, this Act would phase in and expand upon existing telehealth services under Medicare, by, among other changes:

• Removing the geographic barriers under current law and allowing the provision of telehealth services in rural, underserved, and metropolitan areas;

• Expanding the list of providers and related covered service that are eligible to provide telehealth services to include respiratory therapists, physical therapists, occupational therapists, speech language pathologists, and audiologists;

• Allowing remote patient monitoring for patients with chronic conditions such as heart failure, chronic obstructive pulmonary disease, and diabetes; and

• Allowing the beneficiary’s home to serve as a site of care for home dialysis, hospice care, eligible outpatient mental health services, and home health services.

For quite some time reimbursement barriers prevented the expanded use of telehealth/telemedicine under Medicare beyond reimbursement for limited services, limited modes of telehealth, and the “originating site” restriction. Over the last few years, legislation expanding access and reimbursement under Medicare for telemedicine/telehealth services has been introduced, but never passed. This time could be different as the legislation has not only bipartisan support, but also the support of industry groups, including among others, the American Telemedicine Association and the American Heart Association. Stay tuned for additional updates regarding the Act. For further information, contact J. Nicole Martin or any member of Cozen O’Connor’s healthcare law team.