tMed Coalition Comments to Division of Insurance

The tMED Coalition, representing more than 35 healthcare provider organizations, consumer advocates, technology organizations and telecommunication associations, would like to thank the Division of Insurance and MassHealth for the productive listening session held on February 26th, 2021 relative to the implementation of telehealth provisions within Chapter 260 of Acts of 2020. We appreciate the opportunity to provide written comments in follow up to the thoughtful discussion about carrier contracts and communications with providers and members, as well as telehealth technology platforms.

At the outset, we would like to reiterate that, as the Division and MassHealth consider changes to policies to implement the provisions of CH. 260, we would respectfully ask that both agencies consider adopting uniform policies, as far as is practicable, including equitable policies that promote access to care for all patients. Additionally, we would urge both the Division and MassHealth to adopt timelines for any policies to be implemented contemporaneously. Coordinated, streamlined changes among the Division and MassHealth will reduce confusion for providers who will be implementing and tracking such policies.

Finally, we would also like to encourage both agencies to consider flexibility throughout the implementation process. The state has thoughtfully afforded innovative, flexible tools that have allowed health care providers to treat patients at a distance, prevent disease, and preserve supplies of personal protective equipment for our patients during this unprecedented public health emergency. Since the future course of the pandemic, while trending in a positive direction, is still unknown and social distancing is still paramount as we administer vaccines, we would encourage you to continue, to the extent possible, to afford providers with flexibilities that have been allowed under the public health emergency for the use of telehealth, in conjunction with telehealth flexibilities offered by the federal government during the course of the Public Health Emergency (PHE), which will, most likely, extend federally through the end of 2021. Alignment across payers, as much as practicable, will reduce confusion and redundancy for our providers. We would additionally appreciate it if carriers would encourage plan sponsors to take steps that are consistent with the provisions of the guidance that DOI and MassHealth put forth to implement Chapter 260.

A. Carrier Communications with Members

It is critically important that members understand their coverage and any patient liability (deductibles, copayments, coinsurance) for telehealth services as well as any differences in coverage or cost between telehealth visits and in person visits. The tMED Coalition was pleased to generally be in alignment with carriers that information relative to deductibles, co-payments, and coinsurance should be communicated with members at the same time and manner as such cost-sharing mechanisms for in- office care through existing means. For example, this information must be clearly displayed in a carrier’s evidence of coverage documentation, as required under M.G.L. 176O Section 6, which may need to be amended to include telehealth services.

In addition, there should be clarity for members regarding any differences between coverage for in- office services and telehealth services, as well as the ability for patients to obtain cost estimates that reflect any cost differentials between the two modalities. As such, it may thus be necessary to further amend M.G.L. 176O in Section 23 to require carriers to include clear cost estimates for telehealth services. Lastly, the network status of a health care provider should be clearly reflected in the provider directory and should not be affected by whether the patient is being seen via telehealth or in-office. Treating communication relative to cost-sharing mechanisms for services delivered via telemedicine and in-office the same ensures that care delivered via telemedicine is viewed and treated as commensurate with care delivered in-office.

Regarding an appropriate timeline, the Coalition believes that any relevant information related to cost- sharing should be communicated to members as soon as practicable, recognizing it may take time for carriers to codify any related policy changes.

Many carriers have waived co-payment requirements for telehealth services for patients during the pandemic and some are still waiving such requirements for all telehealth care or COVID-related care until the end of the PHE. The variation in co-payments for telehealth services may lead to confusion for patients. Therefore, it is appropriate that carriers provide patients with the most-updated, timely information regarding any co-payment requirements as soon as practicable. Alternatively, the Division may wish to consider waiving co-payments for all telehealth services until 90 days after the conclusion of the public health emergency. In this way, providers will be able to adjust to any changes in the payment system and carriers will have adequate time to communicate such information to their members.

Finally, the tMED Coalition strongly encourages the development of any written communications or materials for consumers to available in multiple languages and reviewed with an equity lens. Written information on websites is often not accessible to many communities due to language, cultural, disability, and education barriers.

B. Carrier Contracts/Communications with Providers

The tMED Coalition uniformly believes in the central tenet that telehealth services must be treated on- par with in-office visits and, therefore, should not require a separate contract or contract amendments. We are again pleased that the carriers who commented regarding these questions are in agreement that requiring providers to execute separate contracts would be administratively burdensome for carriers and for providers and unnecessary for those who are already participating providers for in-office services. Instead of requiring separate contracts, each carrier could embed telehealth as a term as defined in the law within existing contracts or changes could be made through policy amendments to be even more timely. Any contractual or policy amendments must be consistent with any regulatory requirements or guidance issued by the Division around coverage, definitions, prior authorization, patient liability, and technology. Further, providers should be given adequate, mutually agreed upon notice to any such amendments.

Utilization review standards should be carefully developed, based on supporting data and with the input of affected providers and patient representatives. We agree with comments from the carriers at the listening session that it is of paramount importance that members get quality care in the appropriate setting and that not all care may appropriate for telemedicine; however, we strongly believe that whether a service can be appropriately delivered via telemedicine is a clinical decision that should be determined by clinicians and is inherently dictated by the required standard of care. Telemedicine has the power to improve access to health care by removing physical and logistical barriers for patients. We encourage the state to explore and implement critical safeguards to ensure that we do not create new barriers to accessing care through telemedicine by allowing unfettered, unnecessary, or burdensome utilization review and preauthorization requirements simply based on the modality. We believe this will have a chilling effect on the ability of many patients to access timely and effective care and on the ability of providers to offer telehealth.

Moreover, we interpret the relevant statutory language1 to mean that the determination as to whether any utilization review is required should be made based on whether it is required for the same service when delivered in-office. For example, a consult with a dermatologist does not require a prior authorization when provided in the office; likewise, it should not require a prior authorization when delivered by telehealth. By contrast, if speech therapy requires a prior authorization for an in-office visit, it can also be required for telehealth. The important factor to consider is the service being delivered, not the modality through which it is delivered. This interpretation is consistent with the policy outlined by the Division in Bulletin 2020-04 which clearly states that “[c]arriers are directed not to impose any prior authorization barriers to obtain medically necessary health services via telehealth that would not apply to the receipt of those same services on an in-person basis.” This policy implicitly acknowledges that requiring prior authorizations beyond what is required for the same care delivered in-office is unnecessary and can serve as a hindrance to patients’ ability to access medically necessary care.

Again, the determination of which modality is most appropriate should be decided by the treating clinician and the patient, not by the carrier. The provider community has significant concerns that requiring prior authorization for telehealth services when it is not required for in-office visits will significantly affect a patient’s ability to access medically necessary services in a timely fashion. In addition, due to social distancing measures, immunocompromised patients, behavioral health diagnoses, childcare issues, transportation challenges, bad weather, disabilities, etc., many patients prefer the option to connect with a clinician via telehealth and compliance is greater.

As to the timing of the development and implementation of utilization management and prior authorization standards, we strongly urge delay to allow sufficient time to gather and review relevant data, including any proposed guidelines that have been developed regarding the appropriateness of the use of telehealth, to thoughtfully inform such standards. Specifically, we recommend that the Division continue to apply the provisions included in Bulletin 2020-04 regarding prior authorization until after Health Policy Commission (HPC) submits its interim report on the use of telehealth services in the Commonwealth and the effect of telehealth on health care access and system cost, due in January 2022 as mandated in section 67 of chapter 260 of the acts of 2020. Additionally, on the federal level, the Office of the Inspector General (OIG) at the U.S. Department of Health and Human Services – in recognizing the promise that telehealth and other digital health technologies have for improving care coordination and health outcomes – is conducting significant oversight work assessing telehealth services during the public health emergency. With anticipated completion later this year, these reviews will provide objective findings and recommendations that can further inform stakeholders considering appropriate telehealth flexibilities and utilization review standards. The reports from both the HPC and OIG can help ensure the potential benefits of telehealth are realized for patients and providers and should be considered when developing utilization review and prior authorization standards.

With regards to considerations relative the sunsetting of the various reimbursement parity provisions, physicians and other affected health care clinicians need as much transparency and advanced notice as possible before parity provisions expire to ensure sufficient time to meaningfully negotiate reimbursement rates with carriers. It was suggested at the listening session that the Division and MassHealth, along with relevant licensure boards, should communicate with physicians and other clinicians regarding the lifting of the state declaration of emergency, which will trigger the 90-day period after which overall parity in reimbursement for all telehealth services is no longer statutorily mandated.

Upon further reflection, we would recommend that the Administration consider giving at least 90 days- notice as to the recission of the declaration of emergency to give healthcare providers an adequate timeline for a “glide-path” or “runway” regarding changes in reimbursement for telehealth services so they modify their billing systems, adjust patient scheduling, and provide sufficient notice to patients with regards to any changes that providers may make regarding their continued ability to offer telehealth services. We believe that 90 days, as outlined in the legislation, is insufficient time and to the extent possible, additional time should be afforded to avoid disruption of patient care. Physicians and other health care providers regularly schedule patients greater than 90 days in advance; it is critical that patients and clinicians understand important information at the time of scheduling or very soon thereafter. Moreover, carriers should be communicating directly with their contracted clinicians, in addition to any guidance or bulletin that may be issued by a state agency. Any negotiated changes in reimbursement needs to be appropriately reflected in the provider manual and payment systems should be programmed in advance to accurately reflect updated billing and coding for services delivered via telemedicine. To the extent possible, billing and coding should be streamlined across payors, with common modifiers for telehealth adopted uniformly across all payers.

Finally, the tMED coverage would respectfully request that payers provide information regarding patients’ telehealth coverage benefits electronically from the carriers in a consistent format. For example, specialist visit coverage, including potential patient liability, should be sent in a consistent manner across all carriers, so providers know exactly what the coverage is for their patients and can upload this data into their electronic health record (EHR). Currently, there is no consistency in how telehealth coverage is reported on a 271 eligibility response. Some carriers report this in a specified loop, while others include it in free text, which is difficult to impossible to extract and upload in the EHR using batch eligibility. The uniform provision of this information across carriers would be extremely helpful to providers in easing administrative burdens.

C. Telecommunication Technology Platforms

The tMED Coalition appreciates the broad statutory flexibility in the definition of telehealth to allow for the inclusion of existing and new, innovative technologies as key to facilitating access to care via telemedicine, including asynchronous technologies. This definition also allows for future technologies to be encompassed within the statutory definition of telehealth without requirement for further refinement or expansion contingent upon legislative approval. We recommend that the Division and MassHealth adopt a similarly adaptable frame when assessing the utilization and coverage of new and emerging telehealth technologies. The use of technology platforms should remain flexible so long as the technology meets the clinical needs for the services provided, maintains sufficient patient privacy protections (e.g. HIPAA-compliant), and follows necessary provisions of informed consent.

One flexibility that the Division and MassHealth may want to consider through the end of the PHE is with regards to the use of technology platforms that are not HIPAA compliant. Prior to the PHE, a health care provider generally would have to enter into a business associate agreement with a telehealth vendor supplying a HIPAA-compliant telehealth platform. Such an agreement would ensure that the provider and vendor have controls in place to prevent unauthorized access to protected health information (PHI) and a responsibility to notify patients of any breaches of PHI. The HHS Office for Civil Rights (OCR) announced at the start of the pandemic that it will exercise enforcement discretion and not impose penalties for non-compliance with HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the PHE. This enforcement discretion has allowed providers to temporarily use applications such as Apple FaceTime, Facebook Messenger, or Google Hangouts to provide telehealth services. As OCR will continue to exercise discretionary -enforcement during the PHE and to support uniformity in the utilization of technology platforms for providers, the tMED Coalition would recommend that continued temporary use of applications such as Apple FaceTime, Facebook Messenger, or Google hangouts be permitted to continue through the conclusion of the PHE (and 90 days thereafter), despite provisions in Ch. 260 that direct that telehealth services conform to applicable federal and state health information privacy and security standards.

As to the questions regarding licensure, we believe these issues are best addressed with the appropriate state licensing boards. At present, the prevailing interpretation of the law dictates that licensure is dependent on the physical location where the patient is receiving care. The BORIM policy allowing the establishment of a physician-patient relationship via telemedicine is understood to mean that a Massachusetts physician treating a patient in Massachusetts should have a Massachusetts license, regardless of where the physician is physically located. Requiring additional state medical licenses for MA-licensed physicians who are physically located out-of-state at the time of the visit treating MA patients creates an unduly burdensome licensure requirement that will ultimately undermine access to care for patients and disrupt continuity of care.

With regards to the comprehensive, yet flexible, definition of telehealth in the new law, the tMED coalition believes that the definition afforded by the legislature intentionally broadens the use of what has been covered and reimbursed by carriers during the PHE to include systems that have already been in use for a year. Agency guidance during the PHE did not explicitly recognize the use of asynchronous technologies, including store & forward technologies where providers and patients interact on their own timeline. Patient data, such as an image or x-ray in an electronic health record, are captured and “stored” at the originating site and then “forwarded” to a specialist for remote review at a different site at a later time. For some specialties, these “store and forward” systems are standard of care in triaging patients in providing diagnostic accuracy and cost effectiveness. The tMED Coalition would note that this coverage and reimbursement needs to be explicitly mentioned in any imminent guidance to be provided by DOI and MassHealth as it is now law.

Commercial carriers were not required to cover or reimburse for remote patient monitoring during the PHE, while MassHealth has wisely recognized the importance of coverage and reimbursement for remote patient monitoring services. Because remote patient monitoring was included in chapter 260, the Division and MassHealth should consider issuing flexible guidance to define remote patient monitoring (RPM) devices. According to CMS, all devices need to meet the definition of a medical device described in section 201(h) of the Federal, Food, Drug and Cosmetic Act. There is no language that states the device must be FDA-cleared/registered. The RPM device must be capable of digitally uploading patient physiologic data acquired directly by the device (i.e., data cannot be self-recorded or self- reported by the patient). Here is the definition from the FDA definition of a device:

Section 201(h) of the FD&C Act (21 USC 321(h)) provides that the term "device" means:

• An instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component, part, or accessory, which is—
  1. Recognized in the official National Formulary, or the United States Pharmacopeia, or any supplement to them,
  2. Intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man or other animals, or
  3. Intended to affect the structure or any function of the body of man or other animals, and
• Which does not achieve its primary intended purposes through chemical action within or on the body of man or other animals and which is not dependent upon being metabolized for the achievement of its primary intended purposes.

One question that has emerged is will RPM devices be subsidized and covered as durable medical equipment (DME), or reimbursed and covered in other ways? The tMED Coalition recommends that if an RPM device meets the criteria of a medical device, it should be covered the same way medical devices would traditionally be covered, commensurate with Medicare’s coverage of 80% DME cost with 20% patient responsibility for all RPM DME. The Division and MassHealth should also recognize, cover, and reimburse for new Healthcare Common Procedure Coding System (HCPCS) DME codes for “multi-system monitors”. The tMED Coalition would additionally recommend that: DOI and MassHealth review any missing codes for appropriate RPM DME (including but not limited to those for weight scales, blood pressure machines, pulse oximeters, otoscopes, glucometers, etc.); require the same documentation standards for remote patient monitoring as for in-office care; and establish consistent, uniform coding modifiers for RPM across all payers, including utilizing the GQ telehealth modifier for asynchronous telecommunication systems.

Under Chapter 260, MassHealth and commercial carriers are required to cover and reimburse for audio- only services, which was previously mandated under Governor’s COVID-19 Order #4, which has since been rescinded. Audio-only coverage has been extremely helpful for those who do not have access to broadband services that support interactive audio-video technology. It is important to preserve payment parity between audio-only versus video visits among patients who cannot conduct video visits to avoid perpetuating inequities in access and coverage for patients. Online adaptive interviews are similarly helpful and accessible to patients, but this area is ripe for clarification as there has not been prior explicit recognition and state guidance regarding this modality. Furthermore, the tMED Coalition believes that “application-based services” or mHealth (mobile health) should also be included in the definition of telehealth. Examples of such applications include the provision of health care services and personal health data via mobile devices. Applications are downloaded to mobile devices and can be used for patient self-care management, tracking medication usage or drug-to-drug interactions, performing calculations used in clinical practice, and as medical device data systems.

It is important the definition of telehealth recognize, cover, and reimburse for e-consults or interprofessional telephone/internet/electronic consultation. Facilitating interprofessional, peer-to-peer consultations promotes high quality clinical care, especially in complex cases. We urge the Division to consider addressing the potential for patient liability in cost-sharing related to these interprofessional consults, as it may create undue barriers for patients and unnecessary administrative complexities. The AMA defines these consults as an “assessment and management service in which a patient’s treating (e.g., attending or primary) physician/other qualified health care professional (QHP) requests the opinion and/or treatment advice of a consultant with specific specialty expertise to assist the treating physician/QHP in the diagnosis and/or management of the patient’s problem without the need for the patient’s face-to-face contact with the consultant.” Starting in 2019, CMS introduced CPT codes 99451 and 99452 that will reimburse both the referring provider (PCPs) and the consulting provider (Specialist) for performing an eConsult. Additional recommendations regarding coding and billing for these codes will be provided by the Coalition following the March 31st listening session.

Finally, the tMED Coalition recommends that the definition of telehealth also include recognition, coverage, and reimbursement for e-visits which are patient-initiated, non-face-to face digital communications over HIPAA-complaint, secure platforms or portals that require a clinical decision that otherwise typically would have been provided in the office. E-Visits are also called Online Digital Evaluation and Management Services (E/M). Such visits were provided with CPT codes that were published in 2020 by CMS and have documentation guidelines and coverage requirements, in addition to minimum time requirements, as well as steps for review of patient records and interaction with clinical staff and subsequent communication with patients through online portals, telephone, email or other digitally supported communication by qualified healthcare providers. Additional recommendations regarding coding and billing for these codes will be provided by the Coalition following the March 31st listening session.

Thank you very much for your time and your consideration of these matters. We appreciate the opportunity to offer these comments as you craft and formulate policies to implement Ch. 260 of the Acts of 2020 to advance and expand access to telehealth services in Massachusetts. Should you have any questions or concerns, please do not hesitate to reach out to Adam Delmolino, Director, Virtual Care & Clinical Affairs at the Massachusetts Health & Hospital Association (MHA) at (617) 642-4968 or adelmolino@mhalink.org or Akriti Bhambi, Director, Policy and Government Advocacy at MHA at (661) 345-5036 or abhambi@mhalink.org or Leda Anderson, Legislative Counsel at the Massachusetts Medical Society at (781) 434-7668 or landerson@mms.org.

List of tMED Coalition Members:
Massachusetts Health & Hospital Association
Massachusetts Medical Society
Massachusetts League of Community Health Centers
Conference of Boston Teaching Hospitals
Massachusetts Council of Community Hospitals
Hospice & Palliative Care Federation of Massachusetts
American College of Physicians – Massachusetts Chapter
Highland Healthcare Associates IPA
Health Care for All
Organization of Nurse Leaders
HealthPoint Plus Foundation
Massachusetts Association of Behavioral Health Systems
Massachusetts Academy of Family Physicians Seven Hills Foundation & Affiliates
Case Management Society of New England
Massachusetts Occupational Therapy Association
Atrius Health
New England Cable & Telecommunications Association
Association for Behavioral Healthcare
National Association of Social Workers – Massachusetts Chapter
Massachusetts Psychiatric Society
Digital Diagnostics
Zipnosis
Perspectives Health Services
Bayada Pediatrics
American Heart Association / American Stroke Association
Planned Parenthood Advocacy Fund of Massachusetts
Mass. Family Planning Association
BL Healthcare
Phillips
Maven Project
Upstream USA
Cambridge Health Alliance
Heywood Healthcare
Franciscan Children’s Hospital
American Physical Therapy Association – Massachusetts
Community Care Cooperative
Fertility Within Reach
Virtudent
Resolve New England
Massachusetts Association of Mental Health
AMD Global Telemedicine
hims | hers