Hello, my name is Mei Kwong. I'm the Executive Director of the Center for Connected Health Policy, which is the federally designated National Telehealth Policy Resource Center. I've been asked by UC Davis School of Medicine to give you a little bit of information regarding what's the difference between federal and state telehealth policy and how it impacts certain policy areas such as reimbursement, prescribing, and privacy and security. Few disclaimers before we get started today. Please note that any information provided in today's talk should not be considered legal advice. It is strictly for informational purposes. CCHP has always recommend that you consult with legal counsel if you're interested in a formal legal opinion. Also, if I happened to mention a company or show a picture of a product, note that neither I nor CCHP has any type of relevant financial arrangement, relationship, or affiliation with such company. Our objectives today is to learn about the differences between state and federal policies as they relate to reimbursement, to prescribing, and to privacy and security. Bit of background about federal versus state policy. Both federal and state policies may actually touch upon the same topics, but they may have very different rules and requirements for those particular issue areas. Typically, federal law will always trump state laws if they are in conflict with each other. But the state law actually sets a higher bar, requires more requirements than what the federal law requires, then the state law will control. There are some areas in policy for certain issues where it's very clear that one has jurisdiction over the other. Our first topic will be on reimbursement and we're going to cover Medicare, Medicaid, and commercial payers. Note that this is a major policy issue where telehealth is concerned , reimbursement and coverage. The major payers are really the ones that impact the most policy or where the most telehealth policy currently exists is in Medicare, Medicaid, and the commercial payer world. Reimbursement for telehealth policy is that a lot of existing telehealth-specific policy does focus on reimbursement and coverage. There are three major players, as I mentioned earlier, Medicare, Medicaid, and commercial payers. Medicare is a program that's federal and it covers people over 65, and certainly older people with disabilities and people with end-stage renal disease. Medicaid is a state-run program, but they do receive federal dollars for it. There are some federal regulations or requirements that they need to meet and abide by, but it is primarily a state-run program. Commercial payers, when I referred to that term, it's really your private insurance. These are plants such as plants that people may purchase or that your employer may provide for you. That's usually called commercial payers or maybe it might be called private payers or private insurance. Reimbursement policy for telehealth can really be broken down in a lot of cases into four different components. There's really a lot of the telehealth-specific reimbursement policies touches upon one or more of these issues. It is either what service is covered, where the patient is located when the service takes place and is being provided via telehealth, what modality is being used to deliver that service, and what providers are providing that service. You may have a reimbursement policy that says, we will only reimburse, and it could be a Medicaid program or commercial payer, we will only reimburse for a type of service, mental health services, the location when the patient is located in a clinic or a doctor's office or a hospital setting, the modality that's being used, when it's being delivered via live video, and when it's being provided by a psychiatrist or licensed social worker. Those are the four typical elements that you usually see around reimbursement policy or telehealth. That's replicated both on the federal, state level, and commercial payers policies. Medicare. Medicare Is primarily controlled by federal law. That means you do really need an act of Congress to change some of the allowances for telehealth underneath the Medicare program, what it'll cover and what it'll reimburse. There is a little bit of leeway for CMS to make adjustments without having to wait for Congress, but a lot of the major restrictions that you see are embedded in federal law. Congress would need to act, president would need to sign whatever bill they pass before it can change. Even though, as I said, CMS has a little bit of leeway over what type of services might be covered and certain other types of flexibilities, the big ones of the four-issue areas I mentioned before such as what providers can provide the services, what modality is being used, and where the patient is located, primarily a lot of that is embedded in federal law. Medicare also tends to be a little bit more restrictive than what you see on the state level. Again, the states control their Medicaid programs, so they don't actually have to wait for Congress to act to a lot more things. You tend to see some states at least be a little bit more progressive with their telehealth policies than what you see in Medicare because again, a lot of the restrictions are Medicare embedded federal law, so you will have to wait until Congress pass the bill and the president signs it for a major change to happen. A Medicare, as I said, it's controlled by the state, even though they do have to satisfy federal requirements and efficiency, economy and quality of care. That's very broad. There's a lot of leeway of flexibility for what a Medicare program can decide that they're going to cover. It's delivered via telehealth. That also means that it makes no two states alike because each state controls a Medicare program. You have different policies when you compare them to different states. No two states have the exact same policy. Though there may be some similarities between states, they're all very different. If you're a provider who is operating in multiple states and you have Medicaid patients, you will have different policies regarding your telehealth delivered services in those different states, so they will vary. At this time, on 2021 when this video is being recorded, all state Medicaid programs do reimburse for some type of telehealth delivered services, usually the live video version of the modality. A lot of times it's usually for a mental behavioral health services. None of them excludes telehealth. There's something that they all reimbursed for, but it could be a very narrow set of services limited to certain providers or it can be very broad. California is one of the states with broader policies. California has a very extensive telehealth policy in their Medicare program in comparison to a lot of other states. Commercial pair telehealth loss. Now, this is actually also underneath state control as well because each state may pass a law that really dictates what a commercial payer needs to do with telehealth if they're operating within their state. Now, not all states have these laws currently. The majority of states do, but not all of them do. The way the laws are structured actually varied. You could have one state that has a law that says a health plan, you can't cover telehealth delivered services if you want to, all the way to a state that has a law that says health plans, you shall cover telehealth delivered services the same way you would have had the service being delivered in person. By the way, you'll pay the provider the same amount that you would have had delivered the service in person. Then all the other states fall between those two extremes there. Again, not all states have similar laws. They all have different laws. They all have like little nuances to them. Also, not all states have this commercial payer loss. I said the majority of states do have these on their books, but not all of them do. That doesn't mean that a commercial payer cover telehealth services. There's nothing in any state laws that I've seen where it says telehealth is prohibited in this state. A commercial plan could cover telehealth delivered services if they wanted to, even if there's no law on the books. But there are just states that have some type of law on there saying that you either will be doing this or you making it clear that you can do this if you want to. As I said, they have their different types of nuances and differences between states to states. One other thing to keep note of sometimes when you hear about this commercial payer of loss, you'll hear the word parity tossed around a lot. That means being equal to if the service has been delivered in person. There's two ways of looking at the question of parity. There's parity and cover, just services, imperative and payment of services. Coverage of services is, if you have parity of that, that means they would cover the same services they would have regardless if it was delivered via in-person or via telehealth. Parity and payment means that they will pay the same amount, regardless of whether it was delivered in person or via telehealth. There's a difference there. If their law only talks about coverage. Then they're just saying, we'll cover it if it's delivered either via telehealth or in person. But there's nothing in there that says that we have to pay the provider the same amount. It needs to be very explicit in order to make that a requirement on the health plans. Somehow plans may decide to pay the same amount regardless of whether that's written explicitly in the law or not. But you need that language about parity of reimbursement, parity a payment in there in order to have that as a requirement on the health plans. Not every state actually has that actually, a coupled states have that very explicitly written down in their state laws. That has sometimes caused some confusion for folks too and saying, my state is not paying me the same amount as they would have in person. I thought we had a parity law. When you look at it, they meant parity of coverage in the service. Yes. Will be covered. But there's no requirement that says we have to pay you as a health plan the same amount as we would have had you done in a person.
