Medicaid What is Medicaid? “Created in 1965, Medicaid is a public insurance program that provides health coverage to low-income families and individuals, including children, parents, pregnant women, seniors, and people with disabilities; it is funded jointly by the federal government and the states. Each state operates its own Medicaid program within federal guidelines. Because the federal guidelines are broad, states have a great deal of flexibility in designing and administering their programs. As a result, Medicaid eligibility and benefits can and often do vary widely from state to state.” Center on Budget and Policy Priorities How Medicaid telehealth regulations are created The Centers for Medicare & Medicaid Services (CMS) is responsible for implementing laws passed by Congress related to Medicaid, the Children’s Health Insurance Program (CHIP), and the Basic Health Program. To implement these programs, CMS issues various forms of guidance to explain how laws will be implemented and what states and others need to do to comply. In addition to regulations, CMS issues sub-regulatory guidance to address policy issues as well as operational updates and technical clarifications of existing guidance. Using the mandates and guidance provided by CMS as a base, states are free to set up their own telehealth regulations and guidance. The COVID -19 Public Health Emergency (PHE) Following the passage of the Cares Act by Congress (3/27/20) and the President’s declaration of a public health emergency under Section 1135 of the Social Security Act, a blanket 1135 waiver was issued. To participate States were directed to notify CMS regarding their participation. Oregon requested the waiver and was issued a letter of guidance. OHA developed temporary rules based on the guidance. OHA issued temporary guidance for telehealth effective 3/13/2020, and encouraged coverage retroactive to 1/01/2020. This temporary guidance was effective through September 11, 2020. In order to keep the temporary guidance from expiring, OHA extended the guidance through 12/31/2020. On 10/14/2020, OHA filed a Notice of Proposed Rule Making (NPRM) that created permanent telehealth rules for both Medicaid Fee for Service (FFS) and the Coordinated Care Organizations (CCOs) and Dental Care Organizations (DCOs). These rules became effective on 1/01/21. HB 2508 HB 2508 was passed during the 2021 Legislative Session. Section 2 of the act applies to Medicaid fee-for-service and CCOs. It was effective immediately upon passage. Here is a brief summary of the provisions for Medicaid fee–for–service and CCOs contained in the bill:
- Specifically defines ‘audio only’ to mean “the use of audio telephone technology, permitting real-time communication between a healthcare provider and a patient for the purpose of diagnosis, consultation or treatment.” The bill also specifies that ‘audio-only’ does not include fax, email or text messages, nor does it include the delivery of services that are customarily delivered by a provider to a patient via telephone technology.
- Defines ‘telemedicine’ to mean “the mode of delivering health services using information and telecommunication technologies to provide consultation and education or to facilitate diagnosis, treatment, case management or self-management of a patient’s health care.”
- Authorizes OHA to reimburse for the cost of health services delivered by telemedicine at a rate equivalent to the rate paid for the service if it is provided in person.
- Does not prohibit the use of value-based payment methods, nor does it require that any value-based payment method reimburse telemedicine services based on an equivalent fee-for-service rate.
- Requires OHA to include the costs of telemedicine services in its rate assumptions for payments made to providers on a prepaid capitated basis.
- Does not require OHA or a CCO to pay for a services that is not included within the Health Procedure Coding System (HCPCS) or the American Medical Association’s Current Procedural Terminology (CPT) codes.
- Requires OHA to adopt rules to ensure that CCOs reimburse the cost of services delivered via telemedicine.
- A health benefit plan and a dental–only plan must provide coverage of a health service that is provided using telemedicine if:
- the plan provides coverage of the service when it is provided in person;
- the service is medically necessary;
- the service can be safely and effectively provided using telemedicine;
- the application and technology used to provide the service meets all state and federal laws governing privacy and security. (Note: The above provisions are currently included in the regulations)
- Permissible telemedicine applications and technologies include:
- landlines, wireless communications, the Internet and telephone networks;
- include synchronous or asynchronous transmissions using audio-only, video-only, audio and video, and transmission of data from remote monitoring devices.
- During a state of emergency) telemedicine services may be provided using any commonly available technology.
- The health benefit plan or dental-only plan may not:
- distinguish between rural and urban originating sites;
- restrict a provider to delivering services on in-person or only telemedically;
- use telemedicine providers to meet network adequacy standards;
- require an enrollee to have an established patient-provider relationship before receiving a service via telemedicine or require the enrollee to consent to telemedicine services in person;
- require additional certification, location or training requirements for telemedicine providers or restrict the scope of services to less than the provider’s permissible scope of practice;
- impose more restrictive requirements for telemedicine application and technologies than those specified in the bill;
- impose different annual dollar maximums or prior requirements for telemedicine that for those imposed on in-person services;
- require a medical assistant or other health professional to be present with the enrollee at the originating site;
- deny an enrollee the choice to receive a service in-person or via telemedicine;
- reimburse an out-of-network provider at a different rate for telemedicine services than an in-network provider;
- restrict a provider from providing services across state lines if:
- the services are within the provider’s scope of practice;
- the provider has an established practice with in Oregon;
- the provider’s employer operates health clinics or licensed health Care facilities in Oregon;
- the provider has an established relationship with the patient; or
- the patient was referred to the provider by the patient’s primary care or specialty provider located in Oregon.
- prevent a provider from prescribing, dispensing or administering drugs or medical supplies or otherwise providing treatment recommendations to an enrollee after having performed an appropriate examination using telemedicine;
- establish standards for determining medical necessity for services delivered using telemedicine that are higher than standards for services delivered in-person.
- A health benefit plan and a dental-only plan shall:
- work with contracted providers to ensure meaningful access to telemedicine services by assessing the enrollee’s capacity to use telemedicine services;
- ensure access to auxiliary aids and services to ensure that telemedicine services accommodate the needs of the enrollee;
- provide interpreter services for enrollees who need them in order to access telemedicine services and to pay for those services at the same rate as in-person interpreter services;
- ensure that telemedicine services are culturally and linguistically appropriate and trauma-informed.
- A health benefit plan and dental-only plan must pay the same reimbursement for a health service regardless of whether the service is provided in person or using any permissible telemedicine application or technology. However, this does not prohibit the use of value-based payment methods, and does not require that any value-based payment method reimburse telemedicine health services based on an equivalent fee-for-service rate.
- A health benefit plan or dental-only plan is not required to reimburse a health professional:
- for a health service that is not a covered benefit under the plan; or
- who has not contracted with the plan; or
- for a service that is not included in the Healthcare Procedure Coding System (HCPCS) or the American Medical Association’s Current Procedural Terminology (CPT) codes or related modifier codes.
- No later than March 1, 2023, the Department of Consumer and Business Services shall report to the interim committees of the Legislature related to health on the impact of the reimbursement specified on the cost of health insurance premiums in this state.