Massachusetts Legislature Appears Poised to Enact Telehealth Law

July 26, 2018

Update as of 8/1: On July 31, 2018 the Massachusetts Senate and House of Representatives were unable to reach agreement on the more contentious features of the bills addressing funding of community hospitals. Moreover, the legislature did not enact pared-down legislation addressing telehealth, despite optimism that this might occur. There is hope among many in the health care sector that the legislature will address this issue in the next legislative session that begins in January of 2019.

In the interim, organizations with a strong interest in telehealth operations should closely monitor legislative developments, and also can proceed with the planning, development and initiation of telehealth programs.

In an encouraging development for those hoping to see expanded use of telehealth in Massachusetts, the Massachusetts House of Representatives recently passed a multi-faceted health bill that incorporates a number of provisions related to telehealth. Massachusetts is one of very few states that have not yet enacted this type of statute.

The House version bears strong similarities to telehealth provisions passed by the Massachusetts Senate in the fall of 2017. The chambers have until July 31, which is the end of the legislative session, to reconcile the language. If such a bill were enacted, it would then be sent to Governor Baker.

Key telehealth features of the House bill are as follows:

Definition. The bill defines “telemedicine” to be “the use of interactive audio, video or other media for diagnosis, consultation and treatment of a patient’s physical, oral, or mental health;” it explicitly excludes audio-only telephone, fax, online questionnaires, texts, or text-only emails. The extent to which this definition will permit use of asynchronous technology or remote patient monitoring is not yet clear.

Proxy Credentialing Permitted. The Massachusetts Board of Registration in Medicine (BORIM) would be required to permit licensed physicians to obtain proxy credentialing and privileging for telemedicine services with other health care providers or facilities, consistent with Medicare Conditions of Participation telemedicine standards. This streamlined form of credentialing, which has been implemented in many states with telehealth laws, greatly reduces the administrative burden associated with physician receipt of credentialing to engage in telehealth with multiple provider organizations.

BORIM Regulatory Oversight. BORIM would also be tasked with creating a regulatory framework for telemedicine that must at a minimum include, the following: (1) prescribing medications; (2) services not appropriate to provide through telemedicine; (3) establishing a patient-provider relationship in telemedicine; (4) consumer protections; and (5) ensuring that services comply with appropriate standards of care. Detail as to these regulations would influence the ease with which telehealth programs would be implemented in the Commonwealth.

Medicaid Coverage. The bill permits, but would not require, the Massachusetts Medicaid Program and contracting Medicaid Managed Care Organizations to cover services provided through telemedicine, if the services are covered “by way of in-person consultation or delivery” and “may be appropriately provided through the use of telemedicine.”

Insurance Coverage Provisions. The bill contains a number of provisions applicable to insurance coverage of telehealth services, across an array of health insurance organizations, such as HMOs, PPOs, and individual and group policies. As a general proposition, the bill indicates that an insurer cannot decline to provide coverage for health services “solely on the basis that those services were delivered through the use of telemedicine by a contracted provider”, if the health care services are covered “by way of in-person consultation or delivery” and “may be appropriately provided through the use of telemedicine.” While this language appears intended to require coverage parity, it is worded in a manner that may leave the strength and extent of the mandate open to interpretation. Other insurance-related features of the bill include:

  • Permitting utilization review, including preauthorization, to determine the appropriateness of telemedicine, provided the same process is utilized as if the service was provided in-person.
  • Making explicit that insurers will not be required to reimburse a provider for a service not a covered benefit under the plan or a provider not contracted with the plan.
  • Global payment reimbursement must account for the provision of telemedicine services.
  • Deductibles, copayments, and co-insurance requirements are permitted, so long as they do not exceed those that apply to in-person service.
  • Health care providers are not required to document a barrier to an in-person visit, and, significantly, the type of setting where telemedicine is provided shall not be limited. This latter provision appears to pave the way for in-home telemedicine services.
  • Health care services provided via telemedicine must conform to the standards of care for the provider’s profession, and also must conform to applicable federal and state health information privacy and security standards as well as informed consent standards.

A telehealth law in Massachusetts would accelerate growth of this important tool for enhancing access to care for many patients, but perhaps especially those with mobility or transportation issues, chronically ill individuals, and aging patients. Those with an interest in this topic should follow the progress of the legislation over the coming weeks, and should be poised to take action.

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