On April 23, 2020, the Centers for Medicare & Medicaid Services (“CMS”) released a new COVID-19 toolkit. While the toolkit is directed to the states, it should serve the American telehealth community as a focal point for the organization and alignment of the infinite number of state and federal regulations relevant to telehealth. So, it serves as a great organizing tool for provider’s own operational use but also as an architecture for providers to catalogue the changes they would like to suggest to the states in order to improve access to telehealth.
The toolkit was ostensibly designed to provide the states with guidance in expanding telehealth services in state Medicaid programs and Children’s Health Insurance Programs (“CHIP”). The State Medicaid & CHIP Telehealth Toolkit aims to assist state policymakers identify policy considerations that must be addressed in order to increase the adoption of telehealth in the Medicaid and CHIP programs during the COVID-19 pandemic. Importantly, the toolkit is also intended to address policy hurdles that fall outside of a state’s Medicaid or CHIP program, such as licensure and scope of practice limitations that are governed by the state’s various professional practice acts and state licensing boards. In line with Secretary Azar’s March 24th letter, CMS appears to continue to encourage states to take further action to eliminate these obstacles to virtual care by promoting the delivery and reimbursement of Medicaid and CHIP telehealth services.
The toolkit sets forth four broad policy considerations for state policymakers as they evaluate their state’s current telehealth framework under Medicaid and CHIP, including:
- The population to whom the service is being delivered. Federal rules allow Medicaid services to be delivered across all populations via telehealth. CMS encourages states to consider other laws, such as those related to privacy and consent, that may currently impede telehealth delivery and how those restrictions can be effectively addressed. For example, CMS notes that many routine pediatric conditions can be addressed via telehealth when following policies and procedures similar to those for adults.
- The service that is being delivered, including coverage and reimbursement. Some state Medicaid and CHIP programs may limit the types of services that are eligible for reimbursement via telehealth. To effectively tackle the COVID-19 emergency, CMS is asking states to review services that may be delivered via telehealth, including those that have not traditionally fallen within the telehealth model.
- The provider or practitioner delivering the service. In its most direct effort to push states to address licensure, scope of practice, and related obstacles, CMS directs the states consider whether there are limitations on the types of health care providers that may render services remotely and determine which services may be appropriately delivery via telehealth.
- The technology used to deliver the service. While telehealth often requires the use of a two-way audio and visual communication platform, CMS encourages states to consider other alternative forms of virtual care, such as store-and-forward technology and remote patient monitoring. In encouraging states to expand reimbursement for these virtual care services during the COVID-19 pandemic, CMS notes that audio-only communications may be appropriate in certain contexts. CMS also reiterates that HHS is exercising discretion in its enforcement of the Health Insurance Portability and Accountability Act (“HIPAA”) during the outbreak.
In addition, CMS raises a number of specific considerations relating to the delivery of pediatric services.
The most practical aspect of the toolkit is the state checklist, which includes a list of specific questions aimed at helping states identify other potential limitations. The checklist also provides states with a place to document the specific law, regulation, or policy posing a hurdle to telehealth expansion and the next steps for overcoming the limitation. In addition, CMS has included an appendix of frequently asked questions that address topics from the states’ flexibility in expanding Medicaid coverage of telehealth services to when states must file a State Plan Amendment.
Providers should regularly monitor the CMS website for updates to the toolkit, as CMS has indicated that it will be regularly expanded to include examples of actions taken by the states to overcome current barriers to the implementation of telehealth.
Likewise, Husch Blackwell has developed a number of resources for the telehealth community to understand the complicated regulatory landscape including ever-growing collections of 50-state surveys and practical operational solutions. Follow our Digital Health Team at https://bit.ly/2xaK7S6.
Keep an eye out for our series of robust webinar conversations about the new realities and opportunities for telehealth.