2018 IN REVIEW: STATE & FEDERAL TELEHEALTH POLICY

It was an active year for state telehealth legislation in 2018.  Among 39 states and DC, 65 legislative bills passed in the 2018 legislative session, up slightly from 62 bills in 2017.  Additionally, 49 telehealth related regulations were finalized in 38 states related to telehealth.  The enacted legislation this year focused mainly on broadening Medicaid policy, establishing regulatory requirements and enacting interstate licensure compacts.  In general there has been a slowing of enacted legislation addressing private payer reimbursement of telehealth.  Adopted regulation focused on telehealth practice standards by professional boards.

CCHP’s roundup of state approved legislation for 2018 is
now available!

 

Medicaid
Legislation making modifications to Medicaid telehealth reimbursement policies was among the top two areas for state legislation.  While most states already provide some type of reimbursement for telehealth delivered services, Medicaid telehealth legislation focused on broadening the scope of those services, adding additional professionals and reducing barriers to the use of telehealth.  Examples of legislation included California’s AB 2861 which requires Medi-Cal (CA Medicaid) to allow licensed or certified substance use disorder counselors to receive Medi-Cal reimbursement for substance use disorder services provided through telehealth.  Illinois SB 3049 requires their Medicaid to open up telehealth reimbursement to providers such as psychiatrists, FQHCs, and other mental health professionals to provide mental health services to recipients via telehealth.  Meanwhile, Kentucky (SB 112) took steps to eliminate barriers to the use of telehealth in their Medicaid program by prohibiting the requirement that a provider be physically present with a recipient and that prior authorization must be obtained.  Finally, Colorado (HB 1045) has expanded Medicaid reimbursement for teledentistry delivered through telehealth.

 

Private Payer
Unlike in previous years when telehealth private payer bills were some of the most commonly passed pieces of telehealth related legislation, this year the trend has slowed considerably.  Only Kansas (HB 2028) and Iowa (HF 2305) passed comprehensive private payer reimbursement bills.  Other states such as Illinois passed bills that either modified or took a piecemeal approach to telehealth reimbursement requirements.  For example, Illinois HB 5351 requires insurance plans to provide coverage for dietitian nutritionists and certified diabetes educators who counsel senior diabetes patients in the senior diabetes patients’ home to remove the hurdle of transportation.  Arizona HB 2042 added urology, pain medicine and substance abuse to the services required to be reimbursed by private payers.

Despite a small surge of bills introduced in 2017 that explicitly required insurers pay the same amount for telehealth delivered services as they do for in-person services (“payment parity” bills), CCHP did not find any such bills that passed in 2018 with a requirement for payment parity.  Although Washington initially considered a payment parity bill, they ultimately opted to pass SB 6399 which creates a telemedicine payment parity pilot program instead.  In their law, Kansas (HB 2028) decided to include a provision that ensures insurers are not requiring patients to utilize telemedicine in lieu of receiving in person services from an in-network provider. This type of provision may become more common in private payer laws, as policymakers look to build in protections for patients.
Professional Practice
Enacted legislation related to the professions primarily focused on defining the professions that can deliver telehealth services.  For example, Delaware’s HB 311 specifies that licensed clinical social work may be provided through telemedicine as permitted by regulation and South Carolina S 345 specifies that Advance Practice Nurses may deliver services via telehealth.  Other times, legislation in this area focused on the physician-patient relationship and when prescribing via telehealth is allowed, such as in Nebraska LB 701.

On the regulatory side, adopted regulations were heavily concentrated in the professional regulatory board’s topic area, due to the high number of professional boards adopting or revising their telehealth practice standards.  As reimbursement for telehealth in certain professions has become more prominent, telehealth practice standards in turn are being adopted on a much faster pace than in years past.  Examples include telehealth standards for teledentistry in Tennessee, the Nursing Board in Arkansas, Physical Therapy Board in Texas, and Board of Chiropractic Examiners in Oregon.  Practice standards typically define telehealth, stipulate that a provider must be licensed within the state, requires that the same standard of care be maintained when delivering services via telehealth that applies in-person, and stipulates that a provider stays within their scope of practice and properly establish the patient-provider relationship.
Substance Use & Prescribing
CCHP noted in 2018 the growing concern over the opioid epidemic and substance use disorder reflected in telehealth legislation.  This was most evident in legislation and administrative policy related to prescribing.  Some states, including most recently Connecticut (SB 302), that had previously prohibited the prescription of controlled substances over telehealth created specific exceptions for drugs used to treat opioid use disorder and/or substance use disorder, although federal limitations would still apply.
Cross-State Licensing and Interstate Compacts
Compacts that allow out-of-state licensed providers to practice in other states was by far the most popular area this year for legislation related to cross-state licensure.  The Interstate Medical Licensure Compact which includes 24 states and the District of Columbia (D.C.) added Vermont, Maryland and D.C. to its ranks in 2018.  The Compact allows for an expedited licensure process for licensed physicians to apply for licenses in other states.  Other Compacts include the Enhanced Nurses Licensure Compact (formerly the Nurses Licensure Compact) with 31 member states, the Physical Therapy Compact (which added 7 states in 2018) with 21 state members total and the Psychology Interjurisdictional Compact which currently has 7 members, adding three member states in 2018.  Although the Psychology Interjurisdictional Compact has the needed seven members to make it operational, it won’t become active until 1/1/2020 unless another state adopts the Compact with an earlier effective date.
Pilots, Studies and Demonstrations
Although pilots, studies and demonstrations was the most commonly introduced piece of telehealth related legislation in 2018, only seven of these bills were enacted into law.  Most of these were not focused on telehealth specifically, but targeted a specific population, and telehealth was one aspect that could be utilized to deliver care, such as B22-0232 to deliver comprehensive behavioral health care services in D.C.  Utah’s HB 308 which requires the establishment of the Telehealth Mental Health Pilot Program by the Division of Substance Abuse and Mental Health was one of the few that focused on telehealth specifically.
Federal Legislation & Regulation
States are not the only level of government that experienced telehealth policy changes in 2018.  Two major federal legislative bills passed in 2018 that will impact telehealth across the nation moving forward.

Bipartisan Budget Act of 2018
The Bipartisan Budget Act of 2018 requires changes to Medicare reimbursement and coverage for telehealth services. Beginning Jan. 1, 2019, some new sites will be eligible as originating sites and exempt from Medicare’s geographic restriction for the purpose of visits related to end-stage renal disease and treatment of acute stroke. Additionally, beginning in 2020, Medicare Advantage Plans will be able to provide coverage for additional telehealth benefits and Accountable Care Organizations will be able to include the home as an originating site under certain conditions.  Read CCHP’s factsheet on the bill for more information.

SUPPORT for Patients and Communities Act
The SUPPORT for Patient and Communities Act requires CMS to adjust their reimbursement policy of telehealth for treating individuals with SUDs or a co-occurring mental health disorder.  Specifically, it removed the originating site geographic requirements for telehealth services on or after July 1, 2019 for any existing Medicare telehealth originating site (except for a renal dialysis facility).  Additionally, the home was made an eligible originating site for purposes of treating these individuals.  The law requires a report assessing the impact of this section within five years of enactment.  Additionally, CMS is required to issue a report on reducing the barriers to using telehealth services and remote patient monitoring for SUD among pediatric populations under Medicaid.  Finally, the enacted legislation requires the Attorney General to promulgate a final regulation within one year of enactment specifying the limited circumstances in which a special registration to use telemedicine to treat substance use disorder may be issued and the procedure for obtaining a special registration.
Looking Ahead
2019 promises to be another active year in telehealth policy.  In addition to the federal changes previously mentioned, Medicare has also incorporated major telehealth policy changes into their Calendar Year 2019 Physician Fee Schedule, which communicates a new interpretation by CMS of the applicability of their statutory requirements for reimbursement of remote communication technology as separate from telehealth and adds new services, such as virtual visits, asynchronous remote evaluation and interprofessional internet consultation. This may open the door for more expansive reimbursement moving forward for services not explicitly defined in statute.  It could also have a trickledown effect on the state, and even private payer policy levels where other payers may start to consider reimbursement for these other types of services as well.