Two months in and this year has already seen significant movement in regulatory action across the country to expand the ability to provide telemedicine services. Below please find some of the more significant items that have already gone into effect in 2016 or are under consideration, including commercial payor and Medicaid reimbursement coverage for telemedicine services, reciprocal licenses for out-of-state providers and the ability to prescribe without an in-person evaluation.
Parity Laws in New York and Connecticut
Effective January 1, 2016, New York passed a Chapter Amendment clarifying last year’s telemedicine commercial coverage statute. Under the 2016 Chapter Amendment, private insurers are required to cover services via telemedicine if provided by hospitals, home care and hospice agencies, licensed physicians, physician assistants, dentists, nurses, midwives, podiatrists, optometrists, ophthalmic dispensers, psychologists, social workers, speech language pathologists and audiologists. The parity law prohibits an insurer from excluding from coverage a service provided via telehealth if that service is otherwise covered in-person.
The law also provides for Medicaid reimbursement to providers for telehealth services, which is defined broadly to include real-time two-way electronic audio visual communications, asynchronous store and forward technology and remote patient monitoring. However, with the exception of remote patient monitoring, telehealth will not be reimbursed by Medicaid when the patient is located in their home. The New York Department of Health is expected to release telemedicine regulations later this year.
Similarly, Connecticut also recently passed a new telemedicine parity law that went into effect January 1, 2016. Under Connecticut’s parity law, commercial insurers must provide coverage for services rendered via telemedicine under the same terms and conditions as would apply if that service was provided in-person. Connecticut broadly defines telehealth to include services performed by a telehealth provider at a distant site as well as synchronous interactions, asynchronous store and forward transfers and remote patient monitoring.
Notably, Connecticut went even farther than New York in its telehealth parity law by expressly preventing a health plan from excluding a service from coverage solely because the service is provided through telehealth and not in-person. In this way, a health plan cannot exclude a telehealth service, such as remote patient monitoring, simply because it does not lend itself to an in-person professional service.
Florida’s Controlled Substance Teleprescription Law
Florida recently implemented a new rule to permit physicians to prescribe controlled substances via telemedicine exclusively for the treatment of psychiatric disorders, effective March 4, 2016. Specifically, the amended regulation provides that controlled substances may not be prescribed through the use of telemedicine, “except for the treatment of psychiatric disorders.”
However, after passing this new rule, the Florida Board of Medicine recognized that it is still restricted by the Federal Ryan Haight Online Pharmacy Consumer Protection Act of 2008. The Ryan Haight Act narrowly permits the remote prescription of controlled substances for patients without an in-person evaluation so long as the patient is: (1) physically located in a hospital or clinic with a valid DEA registration; and (2) treated by a DEA registered practitioner in the usual course of professional practice and in accordance with state law. Accordingly, while Florida is expanding its telemedicine laws, the prescription of controlled substances via telemedicine will only be broadly permissible if the American Telemedicine Association, or other organizations, are successful in amending the Ryan Haight Act.
Newly Introduced Telemedicine Bills in New Jersey and Ohio
Various other states are also in the process of trying to pass telemedicine bills. For example, New Jersey recently introduced a bill on February 8, 2016, that would require private payors to provide coverage for telemedicine to the same extent that the services would be covered if they were provided through an in-person consultation.
Additionally, another NJ telemedicine bill was introduced on January 12, 2016, which would provide a mechanism for physicians and other health care providers to obtain reciprocal licenses to practice in New Jersey if the providers are licensed by another state in their particular specialty. The bill would also provide a parity law for telemedicine services to be reimbursed under NJ Medicaid. As a similar bill was proposed in 2015 and has now carried over into the 2016 session, the likelihood of its passing is even greater.
An Ohio legislative bill is also headed to the Senate that would allow patients to obtain prescriptions (for non-controlled substances) without an in-person exam or visit from a health care provider.
For more information on telehealth and telemedicine legal and regulatory considerations, continued legislative developments or related issues, please feel free to contact Daniel Meier or any member of our health care practice group for a further discussion.