Regulatory Roundup — September 2022

October 12, 2022

Regulatory Roundup — September 2022

Regulatory Roundup is the best way to catch up on the latest legislation affecting the telehealth industry. Each month, we summarize the top initiatives you should know about. September’s biggest news comes at the federal level. Take a look!


Senate Bill 3018 — Improving Seniors’ Timely Access to Care Act of 2021 — Enacted 

Introduced in October 2021, this bill was passed by both houses (HB 3171) in mid-September 2022. Any Medicare Advantage (MA) plans require prior authorization for any item or service other than a covered part D drug and shall comply with the following:  

  • Establish an electronic prior authorization program  
  • Issue “real-time decisions” for requests for items and services identified by the Secretary  
  • In defining “real-time decision”  
  • The Secretary shall consider current medical practice, technology, health care industry standards, and other relevant information and factors to ensure the accurate and timely furnishing of items and services to individuals 
  • Meet the transparency requirements specified in the bill 
  • Meet the beneficiary protection standards defined in the bill 

The Office of the Inspector General (OIG) — Released Medicare Program Integrity Risks Report

Utilizing Medicare telehealth data from the first year of the pandemic, the OIG identified seven areas that could indicate fraud, waste, and abuse. They did not determine if actual abuse occurred, but they did recommend that the Centers for Medicare and Medicaid Services (CMS) follow up with these providers, and CMS agreed.  

The seven areas of risk they used in the study were:  

  1. Billing both a telehealth service and a facility fee for most visits 
  2. Billing telehealth services at the highest, most expensive level every time 
  3. Billing telehealth services for a high number of days in a year 
  4. Billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for a high proportion of services 
  5. Billing a high average number of hours of telehealth services per visit 
  6. Billing telehealth services for a high number of beneficiaries 
  7. Billing a telehealth service and ordering medical equipment for a high proportion of beneficiaries

Department of Health and Human Services (HHS) Roadmap for Behavioral Health

Released the week of September 19th, HHS released a roadmap outlining its commitment to incorporate mental health services more broadly in the U.S. healthcare system. 

Key points include: 

  • Commitment to providing the full spectrum of integrated, equitable, evidence-based, culturally appropriate, and person-centered behavioral health care to the populations it serves. 
  • HHS has evaluated key barriers to transforming behavioral health care in line with President Biden’s Strategy to Address our National Mental Health Crisis and has identified policy solutions to overcome these barriers.  
  • Advance the Strengthen System Capacity pillar in the President’s national strategy by developing a diverse workforce prepared to practice in integrated settings and investing in infrastructure for integrated care. 
  • Advance the Connect Americans to Care pillar by leveraging health financing arrangements, including efforts to fully realize the potential of parity.  
  • Advance the Support Americans by Creating Healthy Environments pillar through investments in behavioral health promotion, upstream prevention, and recovery. 

By State

New Mexico — Medical Board Notice of Proposed Rulemaking — Previously published restrictive policies — not enacted

Based on public comment, the Medical Board decided not to enact the restrictive proposed rules. New rules will be drafted and published for public comment. The restrictive proposed rules contained provisions that would create barriers to telehealth. Highlights of the original proposed changes: 

  • Establishing a provider-patient relationship would require an “interactive encounter,” which is not defined. Without a definition, it is unclear if this includes or excludes synchronous visits or would require an in-person visit. 
  • Explicitly exclude asynchronous visits from qualifying as an allowed method to establish a provider-patient relationship 
  • Exclude the use of asynchronous in the entirety – the proposed rule states asynchronous visits “cannot be used for diagnosis and treatment.” 
  • Enact restrictive requirements on issuing prescriptions that arbitrarily alter common standards of practice. 
  • Allow the board to alter state telemedicine practice standards which they may not have the authority to do.

This information, and any other information, content or other materials (collectively “Information”) we provide, does not, and is not intended to, constitute legal advice; instead, all Information is provided for general informational purposes only. The Information may not constitute the most up-to-date legal or other information.  Readers should contact their attorney to obtain advice with respect to any particular legal matter. No reader or user of any Information should act or refrain from acting on the basis of Information without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the Information – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, or access to, the Information does not create an attorney-client relationship between the reader or user, and the author or provider of the Information.


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