Early in the COVID-19 pandemic, Governor Ned Lamont expanded the use of telehealth for Medicaid-enrolled providers and in-network providers through various executive orders (G, DD and FF (collectively, the “Telehealth Executive Orders”)). That expansion included permitting the use of audio-only (telephone) delivery of telehealth services. On Friday, July 31, 2020, the Governor signed legislation, An Act Concerning Telehealth, that codified many of the provisions in the Telehealth Executive Orders through March 15, 2021. This legislation provides needed certainty to healthcare providers and insurers as the Telehealth Executive Orders are only to remain in effect for the unknown duration of the declared public health emergency.
Highlighting the most notable provisions, the Act does the following:
- greatly expands list of providers eligible to provide telehealth services and permits providers to deliver services from any location;
- amends the current telehealth statute to permit the use of audio-only (telephone) delivery of telehealth in accordance with the Telehealth Executive Orders;
- for certain providers, recognizes the U.S. Department of Health and Human Service’s exercise of enforcement discretion on various HIPAA rules and its temporary approval of the use of common non-public facing communication platforms for the good faith delivery of telehealth (e.g., Apple FaceTime, Skype, Facebook Messenger video chat, Zoom);
- requires insurance coverage for telehealth services, prohibits insurance companies from excluding coverage of an in-network provider’s selected telehealth platform, and mandates reimbursement at the same rate as if the service were provided in-person;
- sets requirements for providers seeking payment from uninsured and underinsured patients for telehealth services; and
- permits the Department of Social Services to cover audio-only (telephone) delivery of telehealth to the extent permitted by federal law.
Notably, for providers, the Act also adds an element to the consent process. In addition to other consent requirements, the Act mandates that providers communicate the limited duration of the Act to the patient at the first telehealth visit and document that they have done so.
To ensure compliance, providers relying on the Act’s expansions to deliver telehealth services will have to tell patients at the first telehealth visit (or at the next visit if the first telehealth visit already occurred) that the provisions of the Act that permit the visit are set to expire on March 15, 2021.
Earlier this year, I offered a sample script for the consent process for telephone visits to comply with DSS requirements. Below is my earlier suggested language along with a new sentence to address the limited duration requirement, which is italicized.
“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 it’s more difficult to meet face to face. We can have this telehealth visit today because of a law that expires on March 15, 2021. 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 visit by phone at any time, OK?”
As we all know, the COVID-19 public health emergency is a fluid situation. If expanded telehealth access is still required early next year, we may see an extension of this Act. If not, I think we will see some changes to the telehealth laws, but I do not anticipate widespread acceptance of audio-only visits after the pandemic.