Health Law Attorney BlogN.Y. Department of Health Expands Telehealth Policy for Medicaid During COVID-19 Pandemic
On March 21, 2020, the New York Department of Health (DOH) published guidance in the New York State Medicaid Update March 2020 Special Edition Vol. 36, No. 5 (the “Guidance”) regarding the expansion of telehealth in response to COVID-19. The DOH’s Guidance expands telehealth to better protect Medicaid members from potential contact with sick individuals.
Telehealth Expansion
From March 1, 2020 and through the duration of the State of Emergency declared by Governor Cuomo in Executive Order No. 202, all Medicaid providers are eligible to provide telehealth to Medicaid members if the services are appropriate for telehealth and within the provider’s scope of practice. The provider is not required to obtain written consent but should confirm the Medicaid members identity and provide a general overview of the services s/he will be receiving telephonically. Note that the telehealth service may not be recorded without the member’s consent.
For service dates from March 1, 2020 through the duration of the New York State of Emergency, New York State Medicaid will reimburse providers for the following as specified in the Guidance:
- Telephonic assessment;
- Monitoring; and
- Evaluation and Management (E&M) services.
To be covered, the DOH Guidance requires that these telehealth services be provided to Medicaid members in cases where face-to-face visits are not recommended, and it would be appropriate for the member to be evaluated telephonically. Further, such telehealth services must be performed by Medicaid-qualified practitioners and service providers. Please note that the DOH recommends that Medicaid members be treated via telehealth whenever possible to avoid Medicaid member exposure to other potentially sick patients. This policy conforms to State recommendations and Centers for Disease Control and Prevention (CDC) recommendations regarding social distancing.
Also, note that no other Medicaid rules have been modified or suspended other than those specifically discussed in the Guidance. Therefore, providers must adhere to all other applicable Medicaid policies and rules when providing and billing for telehealth services.
Payment
All telephonic encounters documented as appropriate encounters by the provider will be considered medically necessary for payment purposes in Medicaid FFS or Medicaid Managed Care. During the effective period of DOH’s Guidance, telehealth services shall be reimbursed at 100% of the Medicaid payment rates.
Further, the Guidance provides six (6) payment lanes for telephonic encounters during the COVID-19 State of Emergency. Lanes 1-2 pertain to fee schedule billers (e.g., primary practitioners in office-based settings) and Lanes 3-6 pertain to all other billers that primarily bill rates for clinic and other services. Clinics should bill using Lanes 3-5 depending on FQHC status and practitioner type. Lane 6 pertains to other services not eligible to be billed in another Lane and the DOH intends to issue additional guidance for Lane 6. The DOH Guidance also provides four different modifiers that may be used when billing for telehealth services, including:
- “95” for synchronous telemedicine service rendered via real-time interactive audio and video telecommunication system;
- “GT” for interactive audio and video telecommunication systems;
- “GQ” for asynchronous telecommunications systems; and
- “25” for significant, separately identifiable E&M service by the same physician or other qualified health care professional on the same day as a procedure other service.
Providers should check the Telephonic Payment Chart and Billing Rules for Telehealth Services when billing for telephonic encounters to ensure they are billed properly.
Patient Confidentiality
Telehealth services should always comply with HIPAA requirements and all other relevant privacy laws and regulations, however, the Department of Health and Human Services Office for Civil Rights (OCR) has issued guidance that it will not impose penalties for noncompliance with the HIPAA requirements for telehealth services provided in good faith during the COVID-19 emergency. We previously posted a blog discussing the OCR’s guidance, which is available here.
Applicable Timeframe
As noted above, the applicable timeframe for the expansion of telehealth is effective for services provided on March 1, 2020 until the expiration of New York’s State of Emergency. However, note that the DOH has reserved the right to issue additional guidance modifying or terminating this temporary expansion of telehealth services before the expiration of the State of Emergency. Therefore, providers should periodically check for any subsequent DOH guidance regarding telehealth.
For more information regarding telemedicine or the DOH’s Guidance, please contact Carey Kalmowitz, Esq., Adrienne Dresevic, Esq., or Abby Pendleton, Esq. at (212) 734-0128 or by email at ckalmowitz@thehlp.com, adresevic@thehlp.com, and apendleton@thehlp.com.