Tag Archives: Physician

2016 Is Ramping Up For Telemedicine Developments

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.

OIG Report: Finds Questionable Billing of Nearly $17 Million for Sleep Study Services

On October 9, 2013, the US Department of Health and Human Services Office of the Inspector General’s (OIG) Office of Evaluation and Inspections (OEI) issued a report (OEI-05-12-00340) entitled “Questionable Billing for Polysomnography Services.”  The report found that Medicare paid nearly $17 million for sleep study (polysomnography) services that did not meet one or more of the three Medicare requirements and that 180 providers demonstrated patterns of questionable billing for these services.  The OIG chose to study this issue because Medicare spending for sleep study services rose from $407 million to $565 million from 2005 to 2011, and fraud investigators and sleep medicine professionals have identified specific vulnerabilities regarding polysomnography services.  The findings of the OIG’s report are significant because just as we accurately predicted that the OIG’s December 2010 Report: “Questionable Billing by Skilled Nursing Facilities” would generate increased investigations of therapy services for skilled nursing facilities (“SNFs”), the findings in this Report represents an area in which sleep study service providers can also expect increased enforcement. Continue reading

Health Reform Includes Face to Face Practitioner Encounters for HHAs and DME

The Patient Protection and Affordable Care Act of 2010, H.R. 3590 (the “Health Reform Bill”) includes statutory provisions requiring face to face practitioner encounter requirements for home health certifications and prior to the provision of orders for durable medical equipment.

In the home health context, Title VI, Subtitle E, Section §6407(a) of the Health Reform Bill amends 42 U.S.C. §1395f(a)(2)(c). The amendment adds a condition to the existing conditions for payment.  The new condition provides that prior to making a certification that a patient meets the criteria for Medicare-covered home health services,  the physician “must document that the physician himself or herself has had a face-to-face encounter with the [patient] within a reasonable timeframe as determined by the Secretary’’. At some point in the near future, CMS will likely publish regulations defining “reasonable timeframe”.

In the durable medical equipment context, Title VI, Subtitle E, Section §6407(b) of the Health Reform Bill amends 42 U.S.C. §1395m(a)(11)(B). The amendment adds a condition to the existing conditions for payment.  The new condition provides that prior to providing an order for durable medical equipment under the Medicare program, “a physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist [must have] had a face-to-face encounter with the [patient] during the 6-month period preceding such written order, or other reasonable timeframe as determined by the Secretary.’’ To the extent that CMS wants to redefine the timeframe, it will likely publish regulations in the future.

Additionally, Title VI, Subtitle E, Section §6407(d) of the Health Reform Bill provides that the encounter requirements shall apply to similar home health certifications or orders for durable medical equipment in the Medicaid program.

New York Passes The Family Health Care Decisions Act

On February 24, 2010, the Senate of the State of New York passed (S.3164/A.7729), The Family Health Care Decisions Act (the “FHCDA”). The New York Assembly passed the bill in January.  This important piece of legislation allowing for surrogates to make health care decisions in certain circumstances has been in the works since 1993.  NY Governor David A. Paterson applauded the passage of the FHCDA.

Consumers and health care providers have historically had to rely on a patchwork of common law decisions and the Health Care Proxy and Do-Not-Resuscitate laws to address personal health care decisions. New York common law (in a line of well know court decisions) provides that life-sustaining treatment cannot be withdrawn or withheld, unless clear and convincing evidence of the patient’s wishes can be produced. An advance directive could serve as that evidence but way too often patients have not completed one when they were competent.

The FHCDA now provides a framework for health care decisions to be made by surrogates. By doing so, it reduces the uncertainty and need for judicial determination in many situations in which current law did not provide a clear way for a health care decision to be made for an incompetent patient.

You can find a copy of (S.3164/A.7729), The Family Health Care Decisions Act at http://assembly.state.ny.us/leg/?default_fld=&bn=A07729%09%09&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y