On December 29, 2014, New York State Governor Andrew Cuomo signed into law the provisions of chapter 550 that requires commercial insurers and the medical assistance program (Medicaid) to reimburse for the delivery of health care services by means of telehealth and telemedicine by certain licensed health care providers. The law was made effective on January 1, 2015 and applicable to all policies and contracts issued, renewed, modified, altered or amended on or after such date.
On January 16, 2015, the New York State Department of Health introduced proposed legislation to repeal and/or amend the provisions of chapter 550 and add new articles and sections to the public health, insurance, and social service laws. [S. 2405/ A. 2552A] [http://open.nysenate.gov/legislation/bill/A2552a-2015]. This suggests the existing statute conflicts and is unsuitable with the manner in which the Department of Health desired to recognize telehealth as a covered service in the State of New York.
The proposed legislation is intended to be a parity law to require the Medicaid program and commercial insurers to reimburse for telehealth as a covered service, when appropriate, in a similar manner as those covered services delivered by way of direct (or in-person) care. This article summarizes the pertinent provisions of the proposed legislation and identifies several concerns that may need to be clarified or corrected by the legislature prior to adoption.
The proposed legislation adds Article 29-G (Teleheath Delivery of Services) to the Public Health Law, which would require the Medicaid program to reimburse for the delivery of health care services by means of telehealth as defined under the statute. Article 29-G would redefine the terms under chapter 550 and add certain terms as follows:
- The term “telehealth” is redefined to exclude the delivery of health care services by means of audio-only telephone communications, facsimile or email alone. In addition, the term is redefined and limited to only telemedicine, store and forward technology, and remote patient monitoring.
- The terms “telemedicine” is redefined to remove the requirement that such services are delivered consistent with federal laws and regulations.
- The term “remote patient monitoring” is added and defined to expressly limited to a defined patient class (i.e. requiring frequent monitoring) which may be ordered by a defined class of telehealth providers (i.e. physician, nurse practitioner or midwife) with whom the patient has substantial and ongoing relationship.
- The term “store and forward technology” is added.
- The term “originating site” is redefined and limited to certain licensed facilities (i.e. hospital, hospice and mental health facility), private physician’s offices and, if undergoing remote patient monitoring, the patient’s residence.
- The term “telehealth provider” is redefined to remove and add certain licensed practitioners.
The proposed legislation also adds or amends provisions in the Insurance Laws related to comprehensive health coverage plans (new Section 3217-h); certain long term care plans (Section 3229); non-profit medical and dental indemnity plans (new Section 4306-g); health and hospital service corporation plans (new Section 4306-g); and HMO plans(new Section 4406-g). The legislation would require commercial insurers under these plans to reimburse for the delivery of health care services, when appropriate, by means of telehealth if otherwise a covered service under the plan when delivered by way of direct care.
There are several concerns that may need to be clarified or corrected by the legislature prior to adoption as follows:
- With regard to the commercial health plans, the proposed legislation limits the coverage requirement by stating that “an insurer may exclude from coverage a service by a health care provider where the provider is not otherwise covered under the policy.” Therefore, only those individuals that can afford additional out-of-network benefits would be covered for the delivery of health care services by means of telehealth. In application, this may be a critical limitation on the adoption of telehealth because in most, if not all, instances (other than remote monitoring) the telehealth provider would be located in another region of the state or country and not likely a participating provider in the plan’s network. This is a relevant topic directly related to the purpose of and concept behind teleheath.
- The proposed definition of the term “telehealth” is “the use of electronic information and communication technologies by health care provider to deliver health care services to an enrollee while such enrollee is located at a site that is different from the site where the health care provider is located.” Thus, the term is broader under the Insurance Law than in application to the Medicaid program. Furthermore, there is no limiting definition on the originating or distant site location. For example, the delivery of health care services by means of audio-only telephone alone, if an appropriate medical practice, would have to be covered by the plans. On its face, the definition leaves open the debate, and inevitably the coverage disputes, regarding what covered services can be delivered by means of telehealth under applicable medical practice standards and policy terms.
- The Medicaid program must take into consideration that while telehealth is anticipated to reduce costs of hospital admissions and readmissions, the providers will need financial incentives to invest capital outlay funds to purchase the software technology and equipment to support the provision of telehealth. This may require the Medicaid program to have higher reimbursement rates for telehealth services for a period of years to offset such expenditures. However, this would likely require the State to obtain an amendment to the State Plan if the reimbursement amount for delivery of health care services by means of telehealth is in excess of the current amount reimbursed for covered services delivered by way of direct care.