Regulatory Roundup — November 2022

December 5, 2022

Regulatory Roundup — November 2022

Regulations affecting the telehealth industry are constantly changing, and I want to make it easy for you to keep up with the latest developments. That’s why I start each month by summarizing federal and state initiatives affecting the industry. Let’s dive into this month’s edition of Regulatory Roundup! 


Calendar year 2023 Physician Fee Schedule (PFS) Final Rule Released

The Centers for Medicare and Medicaid Services has released the PFS final rule with multiple changes related to telehealth. Some notable changes: 

  • Extension of several temporarily allowable telehealth services resulting from the public health emergency (PHE). These will be extended until the end of 2023 or 151 days (about five months) following the PHE expiration. 
  • Patients can receive telehealth services in any geographic area and originating site setting (including the beneficiary’s home).  
  • Allow certain services to be furnished via audio-only telecommunications systems;  
  • Allowing physical therapists, occupational therapists, speech-language pathologists, and audiologists to furnish telehealth services will remain in place during the PHE for 151 days after the PHE ends.  
  • The CAA (Consolidated Appropriations Act), 2022 also delays the in-person visit requirements for mental health services furnished via telehealth until 151 days after the end of the PHE.  
  • Physicians and practitioners will continue to bill the place of service (POS) code reported had the service been furnished in person. Modifier “95” continues and identifies the service as delivered by telehealth. This provision will expire near the end of 2023 or the end of the year that the PHE ends. The Telehealth Originating Site Facility Fee has been updated for C.Y. (Calendar Year). 2023, which can be found in the list of Medicare Telehealth List of Services at the following  

US Bill 106450 – Department of Veterans Affairs (V.A.) Coverage of Audio-Only Telehealth for Civilian Health and Medical Program (CHAMPVA) Beneficiaries – Introduced  

CHAMPVA provides coverage for veterans through the V.A. This rulemaking seeks to align CHAMPVA benefits with TRICARE benefits administered through the Department of Defense. In addition, this would better align the CHAMPVA with the requirements of other Federal programs by removing the coverage exclusion of audio-only telehealth.

Closing the Digital Health Disconnect: A Blueprint for Optimizing Digitally Enabled Care – released by the American Medical Association (AMA)

The blueprint is built around six foundational pillars and seeks to engage physicians, health plans, employers, policymakers, health tech companies, venture capital, and private equity funds. The six pillars: 

  1. Build for patients, physicians, and clinicians
  2. Design with an equity lens 
  3. Recenter care around the patient-physician relationship  
  4. Improve and adopt payment models that incentivize high-value care 
  5. Create technologies and policies that reduce fragmentation  
  6. Scale evidence-based models quickly 

The 26-page blueprint is available online at AMA – blueprint for optimizing digitally enabled care

By State

Colorado Emergency Regulations regarding coverage, reimbursement, and utilization review of transfers of a patient between facilities – effective 11.11.22 

In response to pediatric intensive care capacity shortages due to COVID-19, influenza, and respiratory syncytial virus (RSV), the state has enacted two emergency regulations, 22-E-18 and 22-E-19, respectively.  

The department of insurance requires carriers to cover the costs of transfers via ambulance between facilities when a beneficiary is receiving care in a hospital or free-standing emergency department and is deemed to have an emergency medical condition. The transfer and all services at the receiving facility are considered emergency services.  

Carriers are prohibited from requiring prior authorization for the transfer and requests for submission of documentation supporting medical necessity. Carriers are also prohibited from auditing to determine the lack of medical necessity and inappropriate, ineffective, or inefficient services. 

Delaware Board of Medical Licensure and Discipline Practice by Telehealth and Telemedicine Title 24 – Final Regulation

The Board has stricken “Section 19.0 Telemedicine“ in its entirety. This change removes the restriction requiring the sole use of live, real-time audio-visual technology to establish a provider-patient relationship. This change allows providers to use their clinical judgment when determining the most appropriate telehealth modality to establish a provider-patient relationship. In addition to live, real-time audio-visual, providers can utilize asynchronous and audio-only care via telehealth when establishing a provider-patient relationship. 

Kansas Section 6 and 7 of the Telemedicine Act and K.S.A 65-4a10 – Blocked

A Kansas judge has blocked a law banning physicians from prescribing abortion-inducing pills via telemedicine. The lift on this ban is expected to help expand access in rural Kansas; however, the legal battle will continue over this decision.

This matter has been tied up in state court since the Center for Reproductive Rights and Wichita-based clinic Trust Women challenged the June 2011 law requiring physicians to be in the same room as patients when prescribing abortion-inducing medication. The restrictions on a mandatory 24-hour waiting period and parental consent rules for minors still apply.

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