Locke Lord QuickStudy: The Rapidly Evolving Telemedicine Regulatory Landscape in the Wake of COVID-19‎

In connection with the ongoing COVID-19 pandemic, many health care providers and their ‎patients are actively seeking to shift services that are typically provided in an office setting over ‎to telehealth visits. Understandably, providers want to limit office visits to only persons with ‎critical needs that cannot wait or be evaluated remotely, both in order to free up space in medical ‎offices and hospitals, as well as to limit unnecessary exposure.  The federal government and state ‎agencies have proactively taken steps to increase the use and flexibility of telehealth and provide ‎reimbursement for such services where reimbursement was not so readily available prior to the ‎current public health emergency.‎

In general, state Medicaid agencies (“Medicaid Agencies”), pursuant to federal oversight, ‎strictly regulate the provision of, and reimbursement for, telehealth visits under each state’s ‎Medicaid program. Each state further regulates the practice of telemedicine, including the ‎methodology, establishment of a physician/patient relationship, requirements regarding ‎prescribing and physician or practitioner licensure in the state through various state agencies ‎including, in many cases, the state medical boards, state health department, other licensing ‎boards, and the state pharmacy board (“Licensing Boards”).  Additionally, state insurance ‎departments (“Departments of Insurance”) regulate the payment for telemedicine and ‎reimbursement of health care providers by commercial health insurers. Further, the Centers for ‎Medicare and Medicaid Services (“CMS”), which has oversight authority over state Medicaid ‎plans, sets certain standards regarding the permissible use of telemedicine and reimbursement by ‎Medicaid plans under federal law.‎¹ 

To effect these changes, state regulatory authorities and CMS have issued emergency ‎directives, orders, waivers and/or regulations (“Guidance”) dually aimed at getting patients the ‎care they need via telemedicine (where feasible), and ensuring that providers will not be ‎penalized (be it from a licensing or reimbursement perspective) by virtue of the fact that they ‎rendered certain services via telemedicine rather than in-person. As a general matter, the ‎Guidance falls under four broad categories: (i) Medicaid Agency Guidance; (ii) Licensing Board ‎Guidance; (iii) Department of Insurance Guidance and (iv) CMS Guidance, in the form of both ‎blanket and state by state waivers. Below are some important issues for providers and payors to ‎consider in connection with the Medicaid Agency, Licensing Board, Department of Insurance ‎and CMS Guidance:‎

State by State Medicaid, Licensing Board and Department of Insurance Guidance:‎

1. Expansion of Permissible Telemedicine Platforms – The majority of states are issuing  ‎Guidance granting broad authority to providers to conduct both (i) telephonic visits and ‎‎(ii) visits on technology platforms that previously may not have satisfied regulatory ‎requirements for telemedicine visits (i.e.; FaceTime).^‎2 ‎ Consideration should also be given ‎to HIPAA compliance and guidance and waivers from the U.S. Department of Health ‎and Human Services Office of Civil Rights regarding privacy and security of telehealth ‎platforms.‎

2. Waiver or Emergency Licensing Options for Physicians Providing Telehealth Across State ‎Borders – A number of state Licensing Boards, under the authority of declarations of ‎emergency by state governors or other executive orders, have waived the requirement that ‎a physician or other practitioner providing services to a resident of a state have an active ‎license in such state, in favor of authorizing a practitioner to provide telehealth services if ‎the practitioner is licensed in any state or territory.‎³‎  Alternatively, some states have put ‎processes in place to allow emergency, temporary licensing of physicians pursuant to a ‎more streamlined, efficient process.^‎4

3. Clarification and Modification of What Services Are Reimbursable – The scope of ‎services that may be rendered via telemedicine in a given jurisdiction, and the availability ‎of reimbursement for such services, is evolving rapidly. Further, in some jurisdictions, a ‎service rendered via a live-interactive system (e.g., a platform such as or similar to a Zoom ‎or FaceTime visit) will be reimbursed at a more generous rate than a regular telephone ‎encounter.‎⁵ ‎ Other states are expressly requiring that Medicaid managed care plans ‎reimburse telephone and video visits at rates equal to in-person visits.^‎6

States vary broadly and the requirements regarding what platforms and types of ‎telehealth services are reimbursable is highly nuanced. For example, in one jurisdiction, a ‎‎5-30 minute Medicaid evaluation and management service with an established patient via ‎telephone is reimbursable, but not if a related evaluation and service was provided in the ‎previous seven days or if it leads to an evaluation and management service within the ‎next 24 hours.^7‎ ‎ Providers and payors must carefully examine all applicable Guidance in ‎their jurisdiction to understand the rapidly evolving landscape and what is permissible ‎and reimbursable on any given day under Medicaid as well as commercial health ‎insurance. ‎

‎4.‎ Modification of Who Is Eligible for Telemedicine Services – Some states are changing ‎eligibility requirements for which covered persons may receive covered telemedicine ‎services. For example, some state Medicaid Agencies are waiving certain requirements ‎that otherwise mandate that certain telemedicine services be restricted to homebound ‎persons.‎⁸ ‎ Other states have expanded the definition of permissible “telehealth originating ‎site” under applicable regulations to include covered persons’ homes or other secure ‎locations as approved by the covered person and the provider.‎⁹‎  Further, some states have ‎liberalized prior restrictions that telehealth services may only be provided to an ‎established patient in order to allow a practitioner to establish a physician-patient ‎relationship via a telehealth visit.‎¹⁰

CMS Medicaid & Medicare Waivers:‎

CMS has issued specific waivers and other Guidance regarding Medicaid and Medicare ‎telemedicine during the pandemic. For example, according to blanket Medicaid waivers issued ‎by CMS in response to the COVID-19 pandemic, state Medicaid fee-for-service plans are not ‎required to submit a state plan amendment or Medicaid Section 1135 Waiver to pay for ‎telehealth services if payments for services furnished via telehealth are made in the same manner ‎as when the service is furnished in a face-to-face setting.‎¹¹  Additionally, CMS has issued sample ‎state plan fee-for-service payment methodologies for telehealth.^‎12  Lastly, CMS has developed a ‎process to quickly review and respond to state requests for Section 1135 Waivers in addition to ‎the blanket waivers and has already approved many.^‎13

In regards to Medicare, pursuant to a waiver under section 1135 of the Social Security ‎Act and the Coronavirus Preparedness and Response Supplemental Appropriations Act, ‎Medicare has now authorized reimbursement for office, hospital and other visits furnished via ‎telehealth nationwide, including in patients’ homes, starting March 6, 2020 and has waived the ‎requirement that practitioners providing telehealth must be licensed in the state where the patient ‎resides provided that the physician is licensed in a U.S. state or territory.‎¹⁴   A broad group of ‎practitioners including physicians, nurse practitioners, psychologists, and licensed clinical social ‎workers, among others, will be able to offer these telehealth services.‎¹⁵  On March 30, CMS ‎announced further expansions to access to telehealth for persons with Medicare. The changes ‎include providing coverage for audio-only (telephone) visits, as well as coverage for emergency ‎department visits, initial nursing facility and discharge visits, and home visits.^16‎ 

Best Practices and Recommendations

In light of the foregoing, below are several tips for providers and payors:‎

‎1.‎ Know the Guidance - Providers and payors should carefully review Medicaid Agency, ‎Licensing Board, Department of Insurance and CMS Guidance. It is important to ‎understand the positions and any waivers of each of the foregoing state and federal ‎agencies, and to monitor them regularly, as Guidance is evolving by the moment. Of ‎particular importance to providers are state restrictions on whether telemedicine visits will ‎be reimbursed if a related evaluation and service was provided in recent days, or if the ‎telemedicine visit leads to an evaluation and management service in the next several days. ‎Knowing and understanding the applicable Guidance is critical to ensuring that ‎reimbursement will be available.‎

‎2.‎ Consent - Providers should be careful to obtain proper consents from their patients before ‎beginning any telehealth encounter and should comply with federal and state ‎requirements regarding such consents. If consent may be obtained verbally under ‎applicable law and Guidance, the practitioner should carefully document in the medical ‎record that consent was provided.  Providers should be sure that the patient understands ‎‎(i) the benefits (e.g.; lack of exposure to COVID-19 in a medical office) and downsides ‎‎(e.g.; inability for the provider to administer an actual physical exam and potential ‎technological disruptions or possibility of a security breach) of the telehealth encounter, ‎and (ii) that, should the patient so desire, they may still opt for an office visit (if ‎applicable), or alternatively, defer the visit until such time as it is safe to come in for an ‎office visit.‎

3.‎ Controlled Substances - Providers should carefully examine the requirements in their ‎jurisdiction regarding prescribing of opioids and other controlled substances via a ‎telehealth encounter and whether any waivers have been implemented in a particular ‎jurisdiction. As always, it is best to review the applicable authorities and consult legal ‎counsel proactively.‎

‎4.‎ Privacy - Providers must remain aware that, even when working remotely or providing ‎patient services via telephone or telemedicine, state and federal privacy requirements still ‎apply. Providers may want to seek legal counsel regarding the unique nuances that ‎telemedicine raises from a privacy perspective.‎

5.‎ Scope of License - Providers should assume that, in the absence of Guidance to the ‎contrary, Guidance does not alter the scope of practice of any health care provider or ‎authorize the delivery of health care services in a setting or manner not otherwise ‎authorized by law. Providers should carefully review and comply with state Licensing ‎Board Guidance regarding waiver of state licensing requirements or emergency temporary ‎licensure requirements.‎

‎6.‎ Recordkeeping - Providers should assume, in the absence of express Guidance to the ‎contrary, that all applicable recordkeeping requirements remain in place and must be ‎adhered to.‎
If you have any questions about how the evolving Guidance impacts your specific telemedicine ‎obligations and opportunities in view of the COVID-19 pandemic, please do not hesitate to ‎contact us.‎

Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed ‎of the legal issues related to COVID-19.‎

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_{1 See, e.g., Medicaid State Plan Fee-for-Service Payments for Services Delivered Via Telehealth, available here.‎
2 Note that it is important to review the guidance in your state prior to conducting telehealth visits.  This guidance ‎can be found typically in executive orders from the State Medicaid Agency, Governor, Licensing Boards, ‎Department of Insurance as well as any emergency rules that have been passed. 
3 See, e.g., https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-52.pdf‎.
4 See, e.g., https://gov.texas.gov/news/post/governor-abbott-fast-tracks-licensing-for-out-of-state-medical-‎professionals and http://www.tmb.state.tx.us/page/licensing
5 See, e.g., Alaska Division of Health Care Services Temporary Expansion of Medicaid Telehealth Coverage ‎Guidance for Coverage during COVID-19 Public Health Emergency, available here.‎
6 See, e.g., State of California— Department of Health Care Services March 18, 2020 Supplement to All Plan Letter ‎Dated March 18, 2020, available here.‎
7 See Alaska Division of Health Care Services Temporary Expansion of Medicaid Telehealth Coverage Guidance ‎for Coverage during COVID-19 Public Health Emergency. ‎
8 See, e.g., Connecticut Medical Assistance Program Provider Bulletin 2020-10, Policy Transmittal 2020-09 March ‎‎2020, available here.
9 See, e.g., Maryland Department of Health Publication Entitled ‘COVID-19 #1: Temporary Expansion of Medicaid ‎Regulations to Permit Delivery of Telehealth Services to the Home to Mitigate Possible Spread of Novel ‎Coronavirus’, available here.
10 See, e.g., http://www.tmb.state.tx.us/idl/A2936385-466D-15D1-0F9E-F486D0491A27.‎
11 CMS Publication Entitled “Medicaid State Plan Fee-for-Service Payments for Services Delivered Via Telehealth”, ‎available here. 
12 Id.‎
13 See, e.g., https://www.cms.gov/newsroom/press-releases/cms-approves-medicaid-section-1135-waivers-11-‎additional-states-response-covid-19‎
14 Medicare Telehealth Frequently Asked Questions dated March 17, 2020, available here.
15 “President Trump Expands Telehealth Benefits for Medicare Beneficiaries During COVID-19 Outbreak”, CMS ‎Press Release Dated March 17, 2020.‎
16 CMS Fact Sheet Entitled “Additional Background: Sweeping Regulatory Changes to Help U.S. Healthcare System ‎Address COVID-19 Patient Surge”, available here.}