2019 in Review: State and Federal Telehealth Policy – Legislative Roundup

Original Source: Center for Connected Health Policy

 

It was an active year for state telehealth legislation in 2019.  Among 35 states, 113 legislative bills passed in the 2019 legislative session, up significantly from 65 bills in 2018.  Additionally, 54 telehealth related regulations were finalized in 35 states related to telehealth.  The large leap in the numbers of bills passed, was partially due to the increased passage of cross-state licensing legislation enacting interstate licensing compacts.  While the cross-state licensing topic area had 10 bills enacted in 2018, it more than doubled to 23 bills in 2019.  There was also large increases in the passage of bills establishing telehealth demonstrations, pilots and grant programs, as well as bills addressing regulatory professional board practice standards and prescribing. Bills related to both Medicaid and private payer reimbursement also both had an increase since 2018, although the number of bills passed has remained low comparatively.  CCHP’s 2019 roundup of state approved legislation, which includes a detailed listing of all bills by topic area and state, is now available.

Medicaid
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 include Maryland House Bill 605 and Senate Bill 524 which require Medicaid reimbursement of psychiatric nurse practitioners.  New Hampshire Senate Bill 258 places a broader statutory requirement on Medicaid, requiring they cover telemedicine and telehealth services as long as the services are provided within the scope of practice of a physician or other health care professional, and is considered appropriate as determined by CMS regulations.  However, the new law has the caveat that for primary care, remote patient monitoring and substance use disorder services, coverage is only available when the patient has already established care at an originating site via a face-to-face in-person service.  Legislation in Texas (House Bill 1063) also addressed remote patient monitoring in Medicaid by requiring home telemonitoring services for pediatric patients diagnosed with end stage solid organ disease be included in the state’s existing remote monitoring program.

Additionally, Utah House Bill 392 placed the requirement on Medicaid to cover telemedicine delivered services at the same payment rate as in-person services.  Few bills addressed Medicaid managed care plans’ coverage of telehealth delivered services, but the two that did took different approaches, with Texas (Senate Bill 670) requiring Medicaid managed care plans cover telehealth services, and California (Assembly Bill 744) explicitly excluding Medicaid managed care plans from the section of law requiring payment parity of telehealth services for insurers in the state.

Private Payer
While there was a drop in the passage of telehealth private payer legislation in 2018, the number increased slightly in 2019 with several bills making significant changes to states’ telehealth private payer law.  In 2018 there were a number of bills introduced across multiple states that required payment parity for telehealth delivered services, but none of them passed in that year.  However, in 2019 payment parity legislation has received more success including California (Assembly Bill 744), Georgia (Senate Bill 118) and New Mexico (Senate Bill 354).  South Dakota (Senate Bill 137) and Ohio (House Bill 166) both added laws requiring private payers reimburse for services provided via telehealth, however did not include a payment parity component.

Another trend has been expanding the definition of telehealth and requiring reimbursement for additional telehealth modalities, beyond live video.  New Mexico (Senate Bill 354) expanded their definition of telemedicine to include both store-and-forward and remote patient monitoring, and Virginia (Senate Bill 1221) now requires reimbursement for remote patient monitoring services to the full extent that the services are available.  Arizona’s private payer law was previously one of the few state telehealth private payer laws to list the specialties that are subject to the coverage requirement in the statute.  With Senate Bill 1089, they have expanded the telehealth coverage requirement by eliminating the list of specialties, and making their definition of telehealth inclusive of both store-and-forward and remote patient monitoring.

Finally, California Assembly Bill 744 clarified that health plans are not allowed to limit coverage to specific third party corporate telehealth providers, and Texas House Bill 3345 specified that an insurer cannot limit, deny or reduce coverage for telemedicine or telehealth services based on the health professional’s choice of a delivery platform.  These are barriers to telehealth coverage some providers have run up against in states that don’t have this explicit prohibition.

Professional Practice & Prescribing
Enacted legislation related to regulating healthcare professionals focused on defining telehealth within the Practice Acts.  Examples include Georgia (House Bill 253) and Oklahoma (Senate Bill 1038) including telehealth in their definition of occupational therapy, Illinois defining teledentistry in Senate Bill 167, and North Dakota (Senate Bill 2125) providing a definition for telehealth within their physical therapy practice statute.

Some enacted legislation went a step further and defined telehealth professional practice standards including Florida House Bill 23 for all telehealth providers in the state and Oregon Senate Bill 129 for optometrists.  In some cases, the legislation included requirements for establishing the provider-patient relationship and prescribing.  This was evident in the profession of optometry, with several states addressing the issue of prescribing in its professional code.  Oregon’s Senate Bill 129, for example, requires an in-person eye exam before an optometrist can engage in the practice of telemedicine and prescribe corrective glasses or spectacle lenses.  New Hampshire Senate Bill 178, on the other hand allows for the prescription of spectacle lenses or contact lenses via telemedicine as long as the physician conforms to the same standard of care expected of in-person care, and Minnesota House File 559 even allows the provider-patient relationship to be established through store-and-forward technologies for ophthalmic goods when certain conditions are met.  The allowance for store-and-forward to establish a patient-provider relationship is not something that has been seen in telehealth legislation in previous years, but in 2019 California (Assembly Bill 1264) clarified that store-and-forward, including a self-screening tool or a questionnaire, can be used to conduct a prior examination necessary to issue a prescription as long as the appropriate standard of care is met.  North Dakota (Senate Bill 2094) also specified that for some specialties that utilize asynchronous store-and-forward, such as teleradiology or intensive care unit monitoring, an independent examination (video or in-person) of the patient may not be required. In contrast, South Dakota Senate Bill 136 requires a provider-patient relationship be established prior to the use of telehealth, and the description of how a relationship can be formed does not explicitly specify whether or not the relationship could be established via a telehealth (or live video) interaction.

Cross State Licensing
As noted previously, the large influx of cross-state licensing bills in 2019 is primarily related to states enacting one of four interstate licensure compacts for out-of-state licensed providers to practice in other Compact states under certain circumstances.  Each Compact operates differently with the Interstate Medical Licensure Compact being an expedited licensure process that requires physicians to still submit separate applications and fees to each Compact state they wish to provide services in.  The following is a recap of the progress each Compact made in 2019:

Other noteworthy licensing enacted legislation included Florida House Bill 843 which requires the Office of Program Policy Analysis and Government Accountability to research, analyze and make recommendations on Florida’s prospective entrance into the interstate medical licensing compact.  In addition to either being a part of or joining all of the above Compacts in 2019, Georgia also passed Senate Bill 115 in 2019 which requires the Medical Board to issue telemedicine licenses to physicians licensed in another state so that they may engage in the practice of medicine with patients in Georgia through telemedicine.

Demonstration Projects
While legislation establishing telehealth demonstrations, grant programs and pilots in 2018 largely focused on substance use disorder (SUD), in 2019 there was a strong trend in addressing mental health needs in schools and/or for adolescents.  For example, Minnesota Senate File 12 establishes the School-Linked and Shelter-Linked Mental Health Grant Program which permits the use of telehealth in the delivery of grant funded services and activities.  Likewise, Texas Senate Bill 11 establishes the Child Psychiatry Access Network and Telemedicine and Telehealth Programs.  The network would provide consultation services and training opportunities for pediatricians and primary care providers and establish or expand telemedicine or telehealth programs for behavioral health needs for at risk children and adolescents.  Meanwhile, Utah House Bill 393 establishes a psychiatric consultation program providing primary care providers access to telehealth psychiatric consultation when evaluating patients for or treating mental health conditions.  Still, some legislation did look at addressing SUD.  For example, Texas passed House Bill 3285 which requires the establishment of a program to increase opportunities and expand access to telehealth treatment for substance use disorder.

Looking Ahead to 2020
2020 promises to be another active year in telehealth policy.  Some states have already begun pre-filing telehealth bills, the large majority of which focus on addressing cross-state licensing issues or entering interstate licensure compacts or proposals for demonstration projects related to mental health or substance use disorder.  Therefore, CCHP expects trends discussed above to continue well into 2020.

2019 was the first year Medicare began reimbursing a broader set of remote communication technology services (defined as separate from telehealth), encompassing some of the non-face-to-face services that typically occur through telehealth modalities, such as store-and-forward.  Additionally, pending federal legislation to expand Medicare telehealth reimbursement generally, such as the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act of 2019 (S. 2741 and HR 4932) will be critical to monitor as it makes its way through Congress.  Policy changes at the federal level often have a ripple effect at the state level.

Another lingering item that will affect telehealth policy in 2020 is the telemedicine special registration the Drug Enforcement Administration (DEA) is statutorily required to establish to allow providers who are able to register to prescribe controlled substances through telemedicine under certain circumstances.  While the DEA was obligated under law to issue regulations on the special registration in October 2019, they have yet to release their proposal. The contents of the proposal and requirements to be on the DEA’s telemedicine special registry will shape how telehealth can be used to treat patients with conditions, such as opioid use disorder, that require the prescription of controlled substances.