Note: Public Act 21-133 was amended on July 7, 2021. The article below incorporates those amendments and replaces our prior post on this topic.
With the proliferation of new digital platforms and increasing consumer demand, Connecticut providers could use a crash course, at the very least, on the contours of the new telehealth law signed by Governor Ned Lamont on May 10, 2021, Public Act 21-9 (the “Act”), as since amended by Public Act 21-133, Sections 3 and 4. The Act was passed as a temporary statute in effect until June 30, 2023 and codifies aspects of the telehealth-related Executive Orders issued by the Governor during the COVID-19 pandemic. The amended act includes new Medicaid coverage and reimbursement requirements that do not sunset in 2023, meaning they will still apply after that date.
What ought providers know about the new act?
Some highlights follow:
1. Who is a telehealth provider under the new law?
The term “telehealth provider” as used in the Act encompasses a broad spectrum of health care professionals from physicians to art/music therapists who are (1) in network providers, or (2) enrolled providers in the Connecticut Medical Assistance Program (i.e., Medicaid and CHIP) and under certain circumstances may include out-of-state licensed providers.
The providers covered are identified in Section 1(a)(13), Section 3(a)(7), Section 4(a)(7) and Section 5(a)(4) of the Act.
2. What does it mean to be “in network”?
An analysis of the Act prepared by the Office of Legislative Research (“OLR”), as well as the language in the prior Executive Orders that the statute replaces, explicitly require that a telehealth provider be in network for fully-insured plans. (Providers seeking to furnish telehealth services for beneficiaries of self-insured plans will have to look to the terms of their provider contracts for guidance about telehealth services requirements.)
3. Does the new law still allow for “audio only” telehealth?
Yes, the Section 1 telehealth providers covered by the new law can continue providing audio only services. The OLR analysis of the Act states that for purposes of CMAP, audio only services apply only to “established CMAP patients.” No such restriction appears in the Act.
4. What about HIPAA requirements--has the Act changed those?
The provision of telehealth services and health records maintained and disclosed as part of the telehealth interaction must comply with HIPAA. The Act specifically permits telehealth providers to utilize additional information and communication technologies consistent with HIPAA and in accordance with any direction, modification or revision of HIPAA relating to telehealth remote communications as directed by the U.S. Department of Health and Human Services Office for Civil Rights.
5. Where must I be located when providing telehealth services?
Telehealth providers covered by the Act may provide covered telehealth services from any location.
6. What must patients be told about the telehealth services being offered?
The Act says that at the time of their first telehealth interaction, providers must inform the patient of the treatment methods and limitations of treatment using telehealth and the time limitations of the Public Act. The statute’s wording appears to require that this information be provided the patient on the first telehealth visit that takes place after the law’s May 10, 2021 effective date, even if the provider conveyed the information previously.
A telehealth provider must also obtain the patient’s consent to provide telehealth and document the consent in the patient’s medical record. A telehealth provider must ask the patient if the patient consents to the provider’s disclosure of records concerning the telehealth interaction to the patient’s primary care provider.
Further, a telehealth provider must provide the patient with his/her license number, if any, and contact information.
7. What does the Act provide for in terms of reimbursement for telehealth services?
If the provider determines that the patient has coverage for telehealth services, providers are required to accept as payment in full the amount that the patient’s coverage reimburses for such services plus any coinsurance, copayment, deductible or other out-of-pocket expense imposed by the coverage. If the patient does not have health coverage, the provider is limited to collecting the amount that Medicare reimburses for such services.
Section 4(c) of Public Act 21-133 now requires that the Commissioner of Connecticut’s Department of Social Services (DSS) provide for the same reimbursement of telehealth services covered by Medicaid and CHIP as if the services were provided in person. This requirement extends indefinitely past June 30, 2023.
Under Section 4(b) of PA 21-133, DSS will cover audio-only telehealth to the extent permissible under federal law (1) when clinically appropriate, as determined by the DSS commissioner; (2) if it is not possible to provide comparable covered audiovisual telehealth services; and (3) when it is provided to individuals who are unable to use or access comparable, covered audiovisual telehealth services. This provision is not scheduled to end on June 30, 2023.
8. Is there anything more to know?
Yes, a lot. The 20 pages of the new Connecticut statute include specific provisions, among others, covering the writing of prescriptions, the conduct of utilization review for telehealth services by health insurers and similar entities and a section allowing physicians and advanced practice nurses to issue medical marijuana written certifications and provide follow-up care using telehealth.
Providers utilizing telehealth should consult with their attorneys about all of the requirements of the Public Act and of the other laws and regulations governing telehealth.
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About Our Connecticut Health Law Blog
Alerts, commentary and insights from the attorneys of Pullman & Comley’s Health Care practice on legal developments affecting hospitals, physician groups, pharmaceutical and medical device companies as well as other health care providers and suppliers.
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