*Special thanks to Sue Prior and Cheryl Krusch of VantagePoint HealthCare Advisors for assisting with the recommendations for compliance.
Prior to the COVID-19 public health emergency, telehealth had not been widely used in Connecticut. In 2015, Connecticut adopted a telehealth statute, which permits the delivery of certain healthcare services through video and audio communication systems, but specifically excludes delivery via telephone, text message, facsimile or e-mail.[1] Other statutes require private insurers[2] and Medicaid to cover telehealth services.[3] But until recently, most providers were not equipped to deliver and most patients had never experienced a telehealth visit. That has all changed.
Not only has the public health emergency forced widespread adoption of telehealth, but it also triggered a flurry of piecemeal rules and executive orders in rapid-fire succession causing substantial confusion. The most confusing of those rules relate to the delivery of telehealth services via telephone. This article explores those rules and provides recommendations for compliance.
Telehealth Generally in Connecticut
As noted above, the telehealth statute in Connecticut explicitly prohibits the use of telephone for the delivery of telehealth services. This statute governs how a telehealth visit must be conducted in Connecticut, regardless of payer. The temporary COVID-19-related changes to the telehealth statute, however, have been largely driven by payer type (i.e., Medicaid and commercial insurers). For that reason, this discussion is broken down by payer type. We also will examine medication assisted treatment (MAT) separately, as telehealth delivery of MAT services via telephone is a bit more complex.
Connecticut Medicaid
Before the COVID-19 public health emergency, the Department of Social Services (DSS), which administers the state’s Medicaid program, only covered telehealth services in limited circumstances. In DSS’s Provider Bulletins 2020-09 and 2020-10, issued on March 11, DSS dramatically expanded coverage for medical and behavioral health services delivered via a HIPAA-compliant audio and video communication system.[4] A list of CPT codes eligible for telehealth services is on the final page of Provider Bulletin 2020-09.
DSS quickly realized that many Medicaid recipients did not have access to video capabilities. Six days after circulating bulletins 2020-09 and 2020-10, DSS released another provider bulletin (2020-14) permitting the use of telephone for the delivery of telehealth services to established patients. The Governor simultaneously issued Executive Order 7G, which temporarily amended the telehealth statute to allow Medicaid-enrolled providers to deliver telehealth services via telephone (the order also allowed the same for in-network providers of commercial insurers).
DSS’s Provider Bulletin 2020-14 explained that all of the procedure codes detailed in 2020-09 plus a few others added in 2020-14 could be delivered via telephone to established patients and must be billed using time-based billing codes. DSS directed that providers bill all medical telephone visits using codes 99442 (11-20 minutes of medical discussion) or 99443 (21-30 minutes of medical discussion) and all behavioral health visits using codes 98967 (11-20 minutes of behavioral health discussion) and 98968 (21-30 minutes of behavioral health discussion). (Update: On May 11, with a retroactive effective date of May 7, DSS issued Provider Bulletin 2020-44, which ended the use of codes 98967 and 98968 for behavioral health telephone services. The bulletin provided a list of other procedure codes that must be used for telephone-only behavioral health services. Notably, the newly identified codes require a higher time minimum than codes 98967 and 98968. Update to the Update: On May 18, DSS walked back the retroactive effect of this change by issuing a notice to providers and in a response to question 25 in its FAQs ).
This signaled a dramatic shift in billing and documentation for many providers not accustomed to time-based billing. In addition to the time-based billing, providers also must manage other new requirements.
Specifically, under 2020-14, providers must:
1. Comply with all normal billing and coding requirements;
2. Obtain verbal consent for the telephone visit before providing services (consent must be from a parent or guardian for a minor) and document consent in the record. In addition, providers must ensure that the patient is aware of his or her option to refuse telephone services at any time;
3. Develop and implement a procedure to verify the identity of both the provider and patient;
4. Document the visit completely (like an in-person visit) and include the fact that the visit was conducted via telephone;
5. Not bill for telephonic communications that were not previously billable, such as routine follow-up on lab results, provider to provider discussions, scheduling etc.;
6. Not bill if the connection is lost and service cannot be completed for any reason; and
7. Only bill for services that would be reimbursable if provided in-person.
While the ability to provide telephone services to existing patients was incredibly helpful to patients and providers, the pandemic caused an influx of new patients who needed care and did not have video capabilities. In response to this access to care issue, on April 24, the Governor issued Executive Order 7FF, which permits Medicaid-enrolled providers to provide telephone services to new patients who are Medicaid recipients. Unfortunately, the order does not appear to be retroactively effective. As a result, it is unclear whether initial patient visits conducted via telephone between March 18 and April 23 will be reimbursable.
Other notable telehealth by telephone expansions are detailed in Provider Bulletin 2020-28, which permits telephone delivery of home health medication administration services and certain hospice services for established patients, and Provider Bulletin 2020-38, which allows telephone delivery of certain services provided by free-standing school based health centers, family planning clinics and local health departments.
Medicare
On March 30th, the Centers for Medicare and Medicaid (CMS) issued an interim final rule permitting the use of telephone services for new and established patients for CPT codes 99441-99443 and 98966-98968 (with a place of service of 11 for office). While the codes are specifically for “established patients,” CMS announced that it will not review whether the patient was established or not during the public health emergency to allow for these services to be provided to new patients.
Exactly one month later, on April 30th, CMS issued a second interim final rule, which added to the list of providers eligible to provide telehealth services (e.g., physical therapists, occupational therapists, etc.), expanded telehealth via telephone beyond the six codes provided in the March interim final rule and increased the reimbursement for certain CPT codes. The additional codes eligible for telephone delivery are on CMS’s website.
Commercial Insurers
The Governor’s Executive Order 7G, permitting the use of telephone for telehealth, also applies to in-network providers of commercial insurers that fully cover the telehealth service. As with Medicaid, this order applied only to established patients. On April 22, the Governor issued Executive Order 7DD, which permitted the use of telephone for new and established patients (two days before the same was permitted for Medicaid providers and recipients).
While the DSS rules detailed above do not necessarily apply to services billed to commercial insurers, those insurers may have similar rules. To the extent that providers accept Medicaid and private insurance, providers may be best served by implementing the DSS rules, which likely are more stringent, across the board to streamline processes and ensure compliance.
Self-Pay
Because the flurry of new rules in the DSS bulletins and executive orders are payer-driven, it is important to address services provided to self-pay patients. None of the bulletins, rules or executive orders apply to the delivery of services to a self-pay patient. Therefore, we are forced to return to the current telehealth statute to determine if telephone services can be delivered to this population. Again, the telehealth statute explicitly prohibits the use of “audio-only (telephone)” and the temporary amendments to that statute apply only to services delivered to those fully covered by Medicaid or commercial insurers. As a result, the prohibition of telephone delivery of telehealth continues to apply to the self-pay population.
Medication Assisted Treatment (MAT)
Federal law (the Ryan Haight Act) prohibits the prescription of controlled substances without an in-person medical evaluation and imposes restrictions on prescribing controlled substances over the internet.[5] Medications used for MAT such as methadone and suboxone are controlled substances, and therefore, generally require an in-person visit to initiate services. In-person visits became scarce due to the COVID-19 public health emergency and made the initiation of MAT services difficult.
Acknowledging this barrier, both the Substance Abuse and Mental Health Services Administration (SAMHSA), which has rules requiring an in-person evaluation for certain providers,[6] and the Drug Enforcement Agency (DEA), the agency that enforces the Ryan Haight Act, responded by permitting the initiation of buprenorphine (suboxone) MAT services via video or telephone. The DEA announced this in a March 31 letter to registered providers and SAMHSA issued FAQs on the subject. Initial methadone visits must still take place in-person.
Unfortunately, DSS has not adopted similar rules for Medicaid coverage of suboxone MAT induction services in Connecticut. Per Provider Bulletin 2020-09, DSS requires an in-person visit for all MAT induction services provided by office-based opioid treatment providers (e.g., physicians, APRNs, Physician Assistants, behavioral health clinics). DSS Provider Bulletin 2020-14, permits opioid treatment programs (defined by DSS as “methadone maintenance clinics”) to meet the in-person requirement by having the patient present on site with an RN to initiate the service and allow the MAT provider to participate via video. This option is not available to office-based opioid treatment providers.
Even though DSS will not pay for video or telephone MAT induction visits provided by office-based opioid treatment providers, it will reimburse for medication management and psychotherapy MAT services delivered via telehealth (video or telephone) by such providers.
Reimbursable v. Permissible
One important distinction to consider is whether telephone service is permitted by law versus whether a payer will reimburse a provider for the telephone service. Take the initiation of MAT services for suboxone as an example. As described above, the DEA has announced that federal law permits the delivery of MAT induction services for suboxone by telephone during this public health emergency. State law requires adherence with federal law for prescribers to provide MAT services via telehealth.[7] Therefore, during the public health emergency, it is permissible for Connecticut providers to provide initial MAT services for suboxone via telephone without an in-person visit. DSS, however, would not reimburse for that induction visit.
As another example, consider a self-pay patient. State law simply does not permit the delivery of telehealth services via telephone. Further, none of the recently announced temporary amendments to the state’s telehealth statute apply to that population. Therefore, it is not permissible to deliver telehealth service via telephone to a self-pay patient.
Recommendations for Documenting and Billing Telephone Visits
Providers must develop systems to ensure that only eligible visits are billed and to ensure that required information is documented, such as consent and visit duration. Once the systems are in place, provider training is key. Then, providers’ understanding of and adherence to the new rules should be assessed.
Below are some recommendations tied to specific requirements:
Comply with Normal Billing and Coding Requirements
Include chief compliant (CC) in the patient’s own words which can help to establish medical necessity for the service. Document the appropriate history of present illness (HPI), medical/family/social history (if appropriate), review of systems (ROS) and any additional information that was used in formulating the medical decision.
Consent
Create a script for providers to ensure that all providers are delivering the same message and accurately documenting consent. Both the DSS bulletins and Connecticut’s telehealth law require consent. That consent must outline the limitations of telehealth and, under DSS rules, the provider must make clear that the patient can opt-out of telehealth services at any time. Consider the following example:
“Before we begin, I want to make sure that you understand that talking on the phone is not as good as seeing you face to face and that I cannot assess you in the same way over the phone that I can in person. But it does allow me to try to help you during times like this when its more difficult to meet face to face. Do you have questions about having this visit over the phone? Are you OK with having this visit over the phone? Please know that you can change your mind about having this or any visit by phone at any time, OK?”
And then, of course, consent must be documented. If using a script, the script should be part of the record along with an indication that the patient provided consent.
Verifying Identity
Both the DSS rules and the Connecticut telehealth law require verification of provider identity. DSS rules also require verification of patient identity, which is a typical standard of care. Organizations should have a policy or procedure regarding this verification process. For verifying provider identity, the provider should introduce him or herself using full name and degree give his or her name and license number to the patient. To verify the patient’s identity, the provider could ask for at least two identifiers from the patient such as full legal name and date of birth, or other key demographic data points.
Time-based Billing
For many providers, the time-based codes used for telephone visits will be new. Providers must understand that the times indicated within the documentation are for actual interaction with the patient and should not be rounded to the nearest five-minute increment (i.e. correct documentation would read, 14:52 – 15: 23 NOT 14:50 – 15:25). Further, the documentation must support the code billed as if the encounter had been face-to-face particularly for CPT codes that are not ordinarily time based. It is also recommended that the documentation includes the location of both the provider and the patient as well as any other person(s) that may be participating in the communication.
Good faith
Healthcare providers are grappling with so many changes during this public health emergency. The rule of good faith applies to all of these changes. Providers must make a good faith attempt to understand and implement the new rules. While acting in good faith will not prevent an audit or other scrutiny and it will not avoid recoupment or other remedies, it certainly will help reduce the impact of any negative findings.
[1] Conn. Gen. Stat. § 19a-906.
[2] Conn. Gen. Stat. §§ 38a-499a, 38a-526a.
[3] Conn. Gen. Stat. § 17b-245e.
[4] The Governor walked back the HIPAA-compliant platform requirement with Executive Order 7G, which acknowledged the federal Department of Health and Human Services announcement of enforcement discretion with respect to HIPAA compliance for telehealth platforms during the public health emergency.
[5] 21 U.S.C. § 829.
[6] 42 C.F.R. § 8.12(f)(2).
[7] Conn. Gen. Stat. §19a-906(c).