1. Introduction

CMS has been actively promoting telehealth since 2000, when Social Security Act §1834(m) was adopted, and CMS has continued to expand the covered telehealth services. Pennsylvania is a late comer to the telehealth legislative field, but its proposed Telemedicine Act is a comprehensive payment parity and state licensing/enabling piece of legislation.

This article will provide summaries of both developments, and access to the foundational documents.

  1. New Telemedicine Act in Pennsylvania

A new Telemedicine Act is wending its way through the legislative process in Pennsylvania. Senate Bill 780 of 2017 has been unanimously passed by the Senate and referred to the House Professional Licensure Committee on June 19, 2018. Pennsylvania is one of the few states that does not have a dedicated Telemedicine Act and Pennsylvania is attempting to address the two major issues in telemedicine in one Act, i.e. payment parity and professional regulation.

Payment Parity

Although the payment issues are only addressed briefly in the Act, the provisions are significant. Section 6 entitled “Insurance Coverage of Telemedicine,” provides as follows:

  1. Health insurance policies issued, delivered, executed or renewed in the Commonwealth after the effective date of this Section (which has not yet been determined) shall provide coverage for telemedicine delivered by a participating network provider who provides a covered service via telemedicine consistent with the third party insurers’ medical policies.
  2. A health insurance policy may not exclude a healthcare service for coverage solely because the service is provided through telemedicine.
  3. A health insurer shall reimburse a healthcare provider for telemedicine if the health insurer also reimburses the same participating provider for the same service through an in-person encounter.

This concept is known in the industry as payment parity because it seeks to provide equal coverage and payment.

Telemedicine Regulation

The telemedicine regulation section is essentially a licensing provision, but it also defines the key concepts regarding the performance of telemedicine. The regulatory provisions of this Act provide as follows:

  1. Healthcare providers validly licensed in the Commonwealth are authorized to practice telemedicine in accordance with the Act, which essentially means they may deliver telemedicine services to residents of the Commonwealth of Pennsylvania. Delivery of telemedicine services in other states is regulated by the other states and usually requires licensing in the state of the patient’s location. Conversely, an out-of-state provider providing telemedicine services to residents of the Commonwealth must comply with this Act, and be licensed by Pennsylvania.
  2. Physicians already licensed in Pennsylvania treating their patients in Pennsylvania obviously need not be concerned with the licensing requirement, but the Act also establishes a minimum standard of care.
  3. Physicians licensed in Pennsylvania, whether physically located here, providers providing telemedicine services to individuals located in the Commonwealth who do not have an established physician-patient relationship must do the following:
  4. Verify the location and identify of the individual receiving care, and
  5. Disclose the physician’s identity, geographic location and medical specialty or credentials.
  6. Physicians must:
  7. Obtain informed consent regarding the use of telemedicine technologies.
  8. Provide an appropriate examination or assessment using telemedicine technologies.
  9. Establish a diagnosis and treatment plan.
  10. Create and maintain electronic medical records within 24 hours.
  11. Provide a visit summary to the individual if requested and have an emergency action plan in place for medical and behavioral health emergencies and referrals.

Telemedicine Technologies

The appropriate telemedicine technologies are defined as electronic information and telecommunication technologies including but not limited to interactive audio and video, remote patient monitoring or store and forward systems that meet the requirements of HIPAA. Healthcare providers may utilize interactive audio without interactive video if used in conjunction with store and forward technology and the provider makes a determination that the same standard of care can be provided, but the provider must inform the patient that the patient has an option to request interactive audio and video.

Allowable technologies do not include audio only medium, voicemail, fax, email, instant messaging or text messaging or online questionnaires–or any combination thereof. That raises the issue of how the Board of Medicine would react to a physician performing those acts, since it is defined as “not being telemedicine”. I presume that would be seen as practicing medicine in an unauthorized manner, or at least negligent conduct.

Note that the Act excludes provider-to-provider consultations from the definition of telemedicine, but that has always been the case and it is fairly obvious since the other physician is presumably not a patient and the consulting physician is not providing a service it could be billed to a patient; there is no face-to-face encounter and no telemedicine encounter.

III. 2019 Proposed Medicare Fee Schedule Telehealth Expansion

The 2019 proposed Medicare Fee Schedule was published on July 27, 2018 by CMS and can be found at https://s3.amazonaws.com/public-inspec tion.federalregister.gov/2018-14985.pdf, as well as the CMS website.

Pages 61 through 91 of the Executive Summary are devoted to: Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services. (To view the pdf document online, the link is http://bit.ly/CMS1693p)

This subsection is devoted to explaining both additions to the existing list of covered Medicare Telehealth Services and an identification of and an explanation for covering those additional services by Medicare.

CMS is careful to distinguish its process for simply adding services to the existing list of covered Medicare Telehealth Services and the addition of new types of services outside of the existing telehealth structure. CMS believes that simply adding services to the existing list of Medicare telehealth services would require those additional services to be subject to the limitations on Medicare telehealth services as established in Section 1834(m) of the Social Security Act, which CMS does not intend to do.

Following is a list of discrete technology base services which CMS proposed to add as separately identifiable physician services payable under the Medicare Physician Fee Schedule, and for which CMS is seeking comment:

  1. Brief Communication Technology-Based Service, e.g. virtual check-in (HCPCS Code GVCI1)
  2. Remote Evaluation of Pre-Recorded Patient Information (HCPCS Code GRAS1)
  3. Interprofessional Internet Consultation (CPT Codes 994×6, 994×0, 99446, 99447, 99448 and 99449)

The Executive Summary goes into great detail regarding the explanation of these types of services, and explaining in the blog post would occupy too much space, but you can refer directly to the link to the executive summary.

On page 74 of the summary, CMS provides an additional list of services they propose to expand under Section 1834(m) of the Social Security Act. You should refer to the Executive Summary for that as well.

  1. Conclusion

The links identified above can be accessed on the ACMS website at http://bit.ly/CMS1693p.

Author profile
Mike Cassidy, Esq

Mr. Cassidy is a shareholder at Tucker Arensberg and is chair of the firm’s Healthcare Practice Group; he also serves as legal counsel to ACMS.