Telemedicine is expanding rapidly. In fact, the term “telemedicine” itself is losing ground to the broader term “telehealth,” which more aptly describes the growing number of providers using electronic communications to provide a growing number of remote health care services.
While state and federal laws are generally slow to keep up, there have been important changes to the telehealth legal landscape, including the federal SUPPORT for Patients and Communities Act (the SUPPORT Act), which was signed into law on Oct. 24, 2018, and the 2019 Physician Fee Schedule Final Rule, which was published on Nov. 23, 2018.
Often, the biggest concern when implementing a telehealth program is payment, which requires an analysis of the three main factors to Medicare coverage and payment for telehealth services: (1) the location of the Medicare beneficiary or patient (the originating site), (2) the type of technology used, and (3) the type of service provided.
The originating site
For a service provided via telehealth to be covered and reimbursed by Medicare, the originating site must be in either a county outside of a Metropolitan Statistical Area or in a rural Health Professional Shortage Area.
The U.S. Census maintains a list of Metropolitan Statistical Areas on its website (https://www.census.gov/programs-surveys/metro-micro.html), and the Department of Health and Human Services Health Resources and Services Administration (HRSA) maintains a list of Health Professional Shortage Areas by state and county on its website (http://hpsafind.hrsa.gov).
The HRSA website also includes a “Medicare Telehealth Payment Eligibility Analyzer” (https://data.hrsa.gov/tools/medicare/telehealth). You can check if an address is an eligible originating site by entering the address information into the analyzer.
In addition, eligible originating sites are limited to certain types of sites, such as hospitals, federally qualified health centers, and skilled nursing facilities. Historically, a patient’s home was universally excluded from the list of eligible originating sites.
However, as of Jan. 1, 2019, the SUPPORT Act eliminates all originating site restrictions for telehealth services furnished to Medicare beneficiaries with substance use disorders or co-occurring mental health disorders. In other words, Medicare will pay for telehealth services furnished to patients with substance use disorders or co-occurring mental health disorders wherever they receive services – even if it is the patient’s home, and even if the patient’s home is within a metropolitan, non-shortage area.
Type of technology
Medicare has historically only paid for telehealth services provided through synchronous, as opposed to asynchronous, technology. Synchronous technology involves interactive audio and video telecommunication systems, meaning real-time communication between the provider and the patient. Asynchronous technology, which does not occur in real time, includes “store and forward” technology, such as the transmission of still or video images.
The final rule introduces HCPCS codes G2010 and G2012 – codes physicians may use to bill for the remote evaluation of images and virtual check-ins, respectively. The new codes establish new payments outside of the traditional telehealth restrictions, because they allow for payment of technology-based services provided through asynchronous technology, including “store and forward” technology.
The new codes should prove especially useful in specialty practices, such as dermatology, where still or video images sent by a patient may aid a provider when evaluating the patient’s current condition.
Type of service
Currently, Medicare pays for approximately 50 telehealth services. Covered services include office or outpatient visits, advance care planning, psychiatric diagnostic evaluations, and others. When the Centers for Medicare and Medicaid Services publish the physician fee schedule each year, the list of telehealth services is often updated. For example, the final rule added “prolonged preventive service” to the list of telehealth covered services.
Not only is the list of covered telehealth services growing, but so is the ability to prescribe without an in-person encounter. The Federal Ryan Haight Act, enacted to combat rogue internet pharmacies that sold controlled substances online, requires an in-person examination prior to prescribing controlled substances. However, there is a limited exception for the “practice of telemedicine” that allows for prescriptions via telehealth by a telehealth provider who has a special registration issued by the Drug Enforcement Agency.
Nevertheless, for nearly 10 years, there were no special registration regulations, meaning telehealth providers could not obtain a special registration and could not prescribe controlled substances without first seeing the patient in-person.
Now, the SUPPORT Act gives the government until Oct. 24, 2019, to promulgate final regulations regarding the special registration. Accordingly, on or before Oct. 24, 2019, providers will be able to obtain a special registration to prescribe controlled substances via telehealth, meaning providers will soon be able to prescribe controlled substances without ever needing to see the patient in-person.
Barry F. Rosen is the chairman & CEO of the law firm of Gordon Feinblatt LLC, heads the firm’s health care practice group, and can be reached at 410-576-4224 or [email protected] Leslie M. Cumber is an associate in Gordon Feinblatt’s health care practice group, and she can be reached at 410-576-4248 or [email protected]