Telehealth Law Signals a “New Normal”

This article was originally published in the New Hampshire Business Review and can be found here.

Telehealth Law Signals a “New Normal”

In the 21st century, health care can and should be provided in a variety of ways

By: Andrew Eills

July 23, 2020

Prior to the coronavirus pandemic, many in health care considered telehealth (aka “telemedicine”) a promising yet under-utilized aspect of health care delivery, something that “the future” at some point would deliver.

That future has arrived, abetted by both federal and state legislative and regulatory efforts to weaken the transmission of COVID-19. While admittedly not  appropriate for every type of disease, telehealth offers access and convenience and has lessened demand on PPE. Measures to implement its development that were hardly contemplated six months ago are now in place, but additional federal and state action will be required to establish permanent and reliable standards to implant telehealth as a primary tool for health care treatment.  During the pandemic, New Hampshire’s legislature grabbed the bull by the horns with its proactive passage of HB 1623, a bill that establishes a comprehensive state framework by which providers and patients can begin to realize the benefits of telemedicine. On July 22, Governor Chris Sununu signed it into law.

For telehealth, “necessity has been the mother of invention.”  The pandemic has forced health care providers of all types to pivot quickly from in-person treatment to telehealth. To protect the public’s health and to mitigate exposure to and the spread of COVID-19, the governor, the Centers for Medicare and Medicaid Services (CMS), and the Office of Civil Rights each have issued regulatory guidance to encourage the use of telemedicine.

On March 18, Governor Sununu issued Emergency Order #8, which provides reimbursement (payment) parity for services delivered via telehealth and also allows a wide range of providers to render care through a variety of electronic means, including audio-only and other  media. By definition, however, Emergency Order #8 ceases upon the end of the governor’s declaration of a state of emergency.

On the federal level, CMS has issued “section 1135 waivers”  directly to New Hampshire that set aside certain CMS regulations and provide guidance on the use of telehealth. CMS also has issued waivers to NH’s Critical Access Hospitals (which serve rural areas), making it easier for telemedicine services to be furnished through an agreement with a larger hospital.  This results in increased access to necessary care for hospital and CAH patients, including access to specialty care. With respect to the medical-record privacy regulations, the Office of Civil Rights  has notified covered health care providers subject to the HIPAA rules that they may communicate with patients and provide telehealth services even though some of the technologies for patient care may not fully comply with the HIPAA.  All of these measures, of course, share a common characteristic – they are temporary and will expire at the end of the national declaration of emergency.  By then it is likely that providers and patients will have completed the initial “test drive” of telemedicine and will want to continue and expand upon the use of telehealth as a means of health care delivery.

HB 1623, “An Act relative to telemedicine” is a bipartisan, comprehensive bill that is an outgrowth of, and reflects the regulatory framework established in, Emergency Order #8.  HB 1623’s provisions contain measures that promote the availability of telemedicine though the following specific steps:

  • Ensures reimbursement parity, expands site of service, and enables all providers to provide services though telehealth for Medicaid and commercial health coverage, thus ensuring that they are paid as if they were providing in-person care.
  • Enables access to medication assisted treatment (MAT) and substance use disorder treatment in specific settings by means of telehealth, allowing qualified physicians to treat patients in need of addiction treatment to receive it, where appropriate, via telemedicine.
  • Allows a wide variety of provider types to deliver and receive payment for telemedicine services.
  • Expands the definition of telemedicine to include audio-only delivery to allow patients without broadband services to receive care in instances where appropriate and where a face-to-face encounter is not feasible.
  • Establishes the use of telehealth services to deliver Medicaid reimbursed services to schools.
  • Establishes a commission to study the enactment of Emergency Order #8 as law.

Taken as a whole, HB 1623 represents an acknowledgment that health care in the 21st century can and should be provided in a variety of ways.  At the same time, and because the regulatory environment is national in scope, the post-pandemic actions of CMS and the Office of Civil Rights will be vital to the manner telemedicine is deployed and ultimately reimbursed by Medicare, Medicaid, and commercial health insurers.  Indeed, both Senator Shaheen and Senator Hassan, with 28 other Senators, recently signed a letter in support of the collection of data to demonstrate the efficacy of telehealth throughout the country.

National challenges, such as that represented by COVID-19, sometimes have the effect of fostering change where change is needed. While additional work is required, HB 1623 is a productive response to this challenge.