States Move Quickly to Address Coronavirus Pandemic With Telehealth

Eighteen states and the District of Columbia have so far amended existing laws or issued new declarations to expand the use of telehealth and mHealth tool during the Coronavirus (COVID-19) pandemic.

According to the California-based Center for Connected Health Policy, states have been primarily waiving Medicaid requirements, including allowing telehealth – even phone calls – to qualify as the establishment of a doctor-patient relationship. Some have also eased the rules to allow residents to access telemental health services from their homes.

CCHP is also providing – and updating daily – a listing of telehealth coverage policies and a separate fact sheet on coverage.

With states shutting non-essential services and in some cases issuing stay-in-place orders, executives and lawmakers are scrambling to eliminate barriers to telehealth use to help residents access care remotely and reduce the strain on hospitals and clinics. The federal government has chipped in as well, with changes to Medicare guidelines.

Most, if not all, of these changes are temporary, timed to expire when the emergency is over.

In Texas, for instance, Gov. Rick Abbott’s March 14 State Disaster Declaration enables providers in the state to use “telemedicine, including the use of telephone only” to treat existing and new patients. Texas is well-known for the long-running battle between the Texas Medical Board and Teladoc over the state’s since-amended rule that a doctor must see a new patient in person before using telehealth.

West Virginia – the last state to report a case of Coronavirus – has issued several declarations in recent days, expanding the use of audio-visual telehealth for non-emergent E&M services to Medicaid members, for mental health visits and in federally qualified health centers (FQHCs) and rural health clinics (RHCs).

Massachusetts, often seen as one of the least telehealth-friendly states with regard to its connected health policies, has also jumped into action. Earlier this week Gov. Charlie Baker ordered all commercial insurers, self-insured plans and state health plans to cover all clinically appropriate telehealth services and at the same rate as in-person care.

Michigan’s governor, meanwhile, called on health plans to do more to encourage the use of telehealth, and ordered the state Medicaid program to include the home as a telehealth site.

“When we expand access through telemedicine, we can help reduce the number of Michiganders who need to visit their health care provider in person, which will help slow the spread of disease and ensure our health facilities have adequate staff and resources to care for those who are sick,” Health and Human Services (MDHHS) Director Robert Gordon said in a press release issued by Gov. Gretchen Whitmer. “And when we expand coverage through a special enrollment period, we can ensure access to quality, affordable care to more Michiganders. This is about keeping the people of Michigan safe and combatting the spread of COVID-19.” 

This list doesn’t include states that have waived licensure requirements or renewal guidelines to allow healthcare providers to treat patients in other states via connected health. That list is managed by the Federation of State Medical Boards (FSMB), which reports that 23 states and the District of Columbia have so far made some sort of emergency declaration.

That issue was thrown into confusion by Vice President Mike Pence, who announced earlier this week that the Health and Human Services Department would mandate “that will allow all doctors and medical professionals to practice across state lines to meet the needs of hospitals that may arise in adjoining areas.” HHS has yet to clarify Pence’s remark, and some have questioned whether the federal government has the authority to make that happen.

Among many other organizations releasing information, the American Medical Association has come out with a “quick guide to telemedicine in practice” to give care providers some tips on how to use telehealth during the pandemic.

In addition, the Centers for Medicare & Medicaid Services CMS) has issued a fact sheet on its new Medicare guidelines, and HHS has a separate document out on new guidelines for the Office of Civil Rights in enforcing HIPAA requirements.

Lastly, the US Drug Enforcement Agency this week issued its long-anticipated and -delayed clarification on allowing care providers to use telemedicine to prescribe controlled substances.

With the Special Registration for Telemedicine Act of 2018, which was part of the SUPPORT for Patients and Communities Act signed into law by President Donald Trump in late 2018, the DEA had until October 24, 2019 to set the ground rules for providers with a special registration to prescribe controlled substances.

That deadline passed without action. In November, the Justice Department announced plans to issue a proposed rule to create that registration process. Nothing had happened until this week, when officials included that provision as an emergency declaration to address the pandemic.

 The intricacies of the DEA order are explained in a blog post from Thomas B. Ferrante, senior counsel, and Sunny J. Levine, associate, with the national law firm of Foley & Lardner.