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Melissa Ward
Sr. Business Analyst - Regulatory Affairs

Welcome to another edition of Zipnosis Regulatory Roundup. Last year proved to be remarkably successful in terms of telehealth legislation modernization, and I am excited to close out 2021 on a high note. Ive listed the years highlights below. (For the latest updates, be sure to check out Decembers roundup.) Lets dive in!

2021 Year in Review  

While telehealth parity and access to care advocacy efforts will continue into 2022, 2021 proved to be the most successful year on record for much-needed telehealth legislation modernization.  

There was a flurry of activity at the federal level, with Congress introducing 47 bills that address telehealth across various programs and populations. Bills include but are not limited to the following areas: Medicare, Medicaid, Veteran Affairs, rural access, skilled nursing facilities, Federal Qualified Health Centers (FQHC), Rural Health Clinics (RHC), remote patient monitoring (RPM), diabetes prevention, prenatal care, substance use disorders, mental health, and the list goes on! 

At the state level, many revised the definition of telehealth to include asynchronous modes of delivery or technology-neutral language. In addition, some states removed originating site requirements and arbitrary in-person requirements, allowing patients direct access to multiple telehealth modalities from the comfort and safety of their homes. Now for a few highlights: 

virtual care regulation

Federal Highlights

The Centers for Medicare and Medicaid Services (CMS) calendar year 2022 Medicare Part B Physician Fee Schedule (PFS) Final Rule ENACTED. 

PFS telehealth highlights: 

  • The Consolidated Appropriate Act (CAA), passed in December 2020, included a statute requiring an in-person mental health visit before qualifying for telehealth services. CMS did not have authority to modify this requirement in the final rule, so it stands (for now) 
  • A CMS required an in-person visit with the provider or a provider in the same practice every 12 months after that 
  • Audio-only behavioral health visits are allowable for established patients. Additionally, 
  • Allows patient’s home as an originating site — updated definition of “home” to include temporary housing (hotel, homeless shelter) 
  • The provider must have the capability for audio/video, but if the patient declines video or does not have the technology needed, a modifier will be required, and the documentation must support the medical necessity of audio-only
  • Allows FQHCs and RHCs to serve as distant site providers for behavioral health and reimburse for the services, including audio-only visits 
  • Added cardiac rehabilitation CPT codes 93797-98 and G0422-23 to the Category 3 list and allows providers to bill all Category 3 CPT codes through 2023. 

*Expect continued legislative advocacy to remove in-person requirements  

 

H.R. 6202 Telehealth Extension Act Introduced

  • A bipartisan bill that would permanently remove geographic restrictions and allow a patient’s home to be an originating site  
  • Give the Secretary of Health and Human Services (HHS) authority to expand originating site eligibility 
  • Allow for continued use of audio-only services
  • Extend several Public Health Emergency (PHE) waiver provisions for two years after the PHE permanently ends 
  • Allow conditionally approved providers, such as rehabilitation therapists, to continue to provide services and avoid the “telehealth cliff” 
  • Implement guardrails to prevent fraud, waste, and abuse by requiring an in-person visit within six months of ordering high-cost labs or durable medical equipment (DME) 
  • Provide Congress additional time to review data from CMS and other sources to guide permanent policy changes for Medicare 
virtual care regulation

State Initiatives Enacted

Maine

ME S 50 — Telehealth Regulations 

  • Updated the definition of telehealth to include synchronous, asynchronous, store and forward, and telemonitoring  
  • Defines “Asynchronous encounters” as: “the interaction or consultation between an enrollee and the enrollee’s provider or between providers regarding the enrollee through a system with the ability to store digital information, including, but not limited to, still images, video, audio, and text files, and other relevant data in one location and subsequently transmit such information for interpretation at a remote site by health professionals without requiring the simultaneous presence of the patient or the health professionals.” 
  • Defines “store and forward transfer” as: “transmission of an individual’s records through a secure electronic system to a person licensed under this chapter” 
  • Updated parity language to be more comprehensive  

Minnesota

MN H 33a — Minnesota Telehealth Act 

  • Defines “originating site” as the site where the patient is located when services are delivered
  • Includes “store-and-forward technology” in the definition of telehealth 
  • Defines “store-and-forward technology” as:
    • “the asynchronous electronic transfer or transmission of a patient’s medical information or data from an originating site to a distant site for the purposes of diagnostic and therapeutic assistance in the care of a patient” 
  • Allows use of audio-only communication that meets the standard of care until July 1, 2023   
  • Requires insurance coverage and reimbursement parity for services that meet the standard of care  

New Jersey

Senate Bill 2559 

  • Eliminated originating and distant site location or setting requirements allowing patients to receive care from their home 
  • Recognizes asynchronous store-and-forward technology as an appropriate means of establishing a provider-patient relationship as long as it meets the standard of care
  • Added the word “static” to indicate that static online questionnaires are not sufficient for prescribing, thus validating the medical sophistication of adaptive online interviews
  • Requires payment parity for two years and an assessment from the Commissioner of Health to determine to what extent payment and coverage parity should be reimbursed permanently  

Ohio

House Bill 122 – Telemedicine Extension Act 

  • Allows providers to establish a relationship via asynchronous and synchronous care, eliminating the in-person requirement 
  • Requires insurance to cover asynchronous care and payment parity for telehealth  
  • Expands eligible providers including but not limited to: school psychologists, optometrists, pharmacists, physician assistants 
  • Allows FQHCs, RHCs, ambulatory clinics, outpatient hospitals, and Medicaid school programs to submit claims to Medicaid

Rhode Island

RI H 6032: Relating to Insurance-Telehealth Coverage Act  

  • An insurer shall not impose technology requirements that are more stringent than state and federal laws. 
  • Added “online adaptive interview” to the definition of telemedicine
  • Requires reimbursement parity delivered by in-network primary care providers, registered dietitian nutritionists, and behavioral health providers 

Wisconsin

Senate Bill 309  

  • Updated the definition of “telehealth” to be technology-neutral (Section 440.01 (1) (hm))
  • Limits professional boards from narrowing the definition of telehealth (Section 440.17) 

 

I hope you found this edition of Zipnosis Regulatory Roundup helpful. I’ll continue to provide updates throughout 2022, so be sure to check back each month for the latest regulatory changes affecting the healthcare industry.

Disclaimer:
This information, and any other information, content or other materials (collectively “Information”) we provide, does not, and is not intended to, constitute legal advice; instead, all Information is provided for general informational purposes only. The Information may not constitute the most up-to-date legal or other information.  Readers should contact their attorney to obtain advice with respect to any particular legal matter. No reader or user of any Information should act or refrain from acting on the basis of Information without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the Information – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, or access to, the Information does not create an attorney-client relationship between the reader or user, and the author or provider of the Information.

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