Connecticut Further Expands Coverage of Telehealth Services During the COVID-19 Public Health Emergency

As anticipated in our prior blog, Novel Coronavirus Hastens the Expansion of Remote Care in Connecticut, the State of Connecticut continues to expand the availability of services via telehealth during the COVID-19 public health emergency. While historically the Connecticut Department of Social Services (“DSS”) has only been permitted to reimburse for telehealth services provided via real time audio and video communication, Governor Lamont’s Executive Order 7F, issued on March 18th, authorized the DSS Commissioner to temporarily waive any statutory or regulatory requirements necessary to enable Medicaid to cover telehealth services provided via telephone or other audio-only modalities during the public health emergency.[i]

Yesterday Governor Lamont issued  Executive Order 7G, which temporarily expands the statutory definition of “telehealth” to include services provided via telephone by Medicaid providers, as well as in-network providers for commercial fully insured health insurance (“In-Network Providers”) providing services to patients with whom there is an existing provider-patient relationship. Executive Order 7G also makes the following modifications to Connecticut law:

• Suspends the current requirement that telehealth providers be licensed in Connecticut, thereby allowing out-of-state providers to treat Connecticut patients via telehealth, in accordance with any related orders issued by the Department of Public Health Commissioner.[ii]
• Waives any requirement that telehealth services be provided from a provider’s licensed facility, allowing providers to treat patients via telehealth from any location.
• Requires that prior to providing telehealth services to a patient who is not covered by Medicaid or a fully-insured commercial plan, the provider determine whether the patient has coverage for telehealth services. If so, the provider is prohibited from billing the patient for any additional charges. If the patient does not have telehealth coverage, the provider may only charge the patient the amount Medicare reimburses for such service.^[iii]
• Permits telehealth providers to utilize additional information and communication technologies in accordance with any new guidance issued by the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) regarding HIPAA.

In accordance with Executive Order 7F, DSS has also issued Provider Bulletin 2020-14, pursuant to which the following evaluation and management (“E/M”) and behavioral health services are temporarily reimbursable when provided to established patients via audio only: a telephone call with a patient that includes an 11-20 minute medical discussion (CPT 99442); a telephone call with a patient that includes a 21-30 minute medical discussion (CPT 99443); a telephone call with a patient that includes an 11-20 minute medical discussion related to behavioral health (CPT 98967); and a telephone call with a patient that includes a 21-30 minute medical discussion related to behavioral health (CPT 98968).[iv] The Provider Bulletin also lists the providers who are eligible to bill for these services and the applicable reimbursement rates.

Although DSS normally requires that a provider obtain written consent from a patient before providing services via telehealth, for the above-described services a provider need only obtain verbal consent, which should be documented in the medical record. The Provider Bulletin further describes general requirements providers must adhere to when rendering services via telephone, including the implementation of procedures that verify both provider and patient identity. The publication also expands on the list of reimbursable services that may be provided to patients via traditional telehealth modalities (both audio and video).[v]

As mentioned above, Connecticut providers may follow any U.S. Department of Health and Human Services Office of Civil Rights (“OCR”) guidance relaxing HIPAA standards during the public health emergency. Significantly, OCR indicated earlier this week that it will be exercising “enforcement discretion” during the current public health emergency if providers want to use consumer communications services (such as Facebook Messenger) to provide telehealth services. OCR Notification. The only requirement is that the remote communication tool not be public facing (meaning that patient visits cannot be livestreamed through, for example, TikTok). This exercise of enforcement discretion applies to telehealth provided for any reason, regardless of whether the service is directly related to the diagnosis or treatment of COVID-19.[vi]

Once the public health emergency is over, providers should expect that these relaxed state and federal standards will be eliminated and/or modified as appropriate. Accordingly,  providers that are taking this opportunity to implement or expand their use of telehealth should also be considering how they will  continue to provide these services once more stringent rules apply.

On a final note, it can be expected that Connecticut will continue to expand the availability of telehealth services for patients as the public health emergency evolves. One opportunity presented itself on March 18th, when the Centers for Medicare & Medicaid Services, which is encouraging states to explore expanded telehealth services as a method of combating the COVID-19 pandemic, issued a guidance document to help states understand their options for expanding telehealth services reimbursable by Medicaid.

Questions regarding the above may be directed to Pullman & Comley’s Health Care attorneys.

[i] This is consistent with State Plan Amendment 20-R, which amended the Medicaid State Plan to allow reimbursement for certain evaluation and management (“E/M”) and behavioral health services when provided via telephone.

[ii] This authorization applies to Medicaid providers and In-Network Providers.

[iii] If the provider determines that the patient is uninsured or otherwise unable to pay for such services, the provider must offer financial assistance, if such provider is otherwise required to provide financial assistance under state or federal law.

[iv] A patient does not need to have a COVID-19 diagnosis or symptoms in order for these services to be reimbursable.

[v] In order to understand the services currently available to Medicaid patients via telehealth, Provider Bulletin 2020-14 should be read in coordination with Provider Bulletins 2020-09 and 2020-10. 

[vi] In addition, while OCR encourages the use of services that will provide a business associate agreement, it is not requiring it at this time.