1. What is telemedicine?
Telemedicine is a way to provide health services virtually, such as through video conferencing or over the phone. In Pennsylvania, Medical Assistance (MA) enrolled providers have been permitted to provide certain physical health and behavioral health services virtually since 2007 and 2011, respectively, but the option was not widely used until many providers shifted to deliver services via telemedicine during the COVID-19 pandemic. Similarly, commercial health insurance plans may have had individual policies allowing for reimbursement for services provided via telemedicine but there is no statute in Pennsylvania that explicitly authorizes or prohibits the use or disallowance of telemedicine in Pennsylvania.
2. Does the Department of State allow licensed professionals to practice telemedicine in Pennsylvania?
Regarding licensed healthcare practitioners and the use of telemedicine, there is currently no statute in Pennsylvania that explicitly authorizes its use, nor one that explicitly prohibits it. This was true even before the pandemic. The purpose of the telemedicine waiver issued by the Department of State at the beginning of the COVID-19 disaster declaration was to address significant confusion and make it clear that licensees under the Department's Bureau of Professional and Occupational Affairs (BPOA) health-licensing boards can provide services within their existing scopes of practice via telemedicine when appropriate, provided it is done according to accepted standards of care.
While providing telemedicine is permissible from a professional licensing standpoint, it is important to note that there may be additional issues to consider − such as the type of insurance coverage, insurance reimbursement policies, medical appropriateness, and the intersection of telemedicine services with existing facility licensing requirements that must be met by hospitals or other licensed health care facilities.
These additional considerations are not within the purview of the Department of State. Rather, such issues fall within the jurisdiction of other federal and state agencies, such as the United States Department of Health and Human Services (HHS), the Centers for Medicare and Medicaid Services (CMS), the Pennsylvania Department of Human Services (DHS), the Pennsylvania Insurance Department, the Pennsylvania Department of Drug and Alcohol Programs (DDAP), and the Pennsylvania Department of Health (DOH).
3. Does the Department of Human Services allow Medical Assistance (MA) enrolled providers to bill for services delivered using telemedicine?
Yes. The Department of Human Services (DHS) has allowed services to be provided via telemedicine since 2007 and has allowed MA-enrolled providers to bill MA for these services. MA-enrolled providers should consult the Office of Medical Assistance Programs (OMAP) and Office of Mental Health and Substance Abuse Services (OMHSAS) telemedicine bulletins for more information on service delivery and billing (see question 7 below). DHS will continue allowing physical health and behavioral health services to be provided via telemedicine delivery and will continue to reimburse at the same rate as services delivered in person in the fee-for-service program. Managed Care Organizations (MCOs) may, but are not required to, allow for the use of telemedicine. MA MCOs may negotiate payment for services rendered via telemedicine.
4. Where can providers locate information on federal telehealth requirements?
Information from the U.S. Health and Human Services on telehealth is available at Telehealth policy | Telehealth.HHS.gov
In addition, United States Department of Health and Human Services' Office of Civil Rights (HHS OCR) has given notice that the prior exercise of enforcement discretion for Health Insurance Portability and Accountability Act (HIPAA) and telehealth services during the PHE, which is available here: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/hipaa-audio-telehealth/index.html
. This guidance will expire on May 11, 2023, with the end of the Federal Public Health Emergency. However, HHS OCR is providing a 90-day transition period to full HIPAA enforcement which will be in effect through 11:59 p.m. on August 9, 2023. Full details regarding the transition period are available here: HHS Office for Civil Rights Announces the Expiration of COVID-19 Public Health Emergency HIPAA Notifications of Enforcement Discretion
.
5. I am a licensed, Medical Assistance (MA) enrolled provider – will I continue to be reimbursed for physical health and behavioral services delivered via telemedicine after October 31, 2022, when the suspended regulations expire?
The MA program will continue to reimburse both physical health and behavioral services delivered via telemedicine after October 31, 2022
Act 98 of 2022 permanently abrogated the two DHS regulations that prohibited payment specifically for audio-only telehealth service delivery—outpatient psychiatric clinics (which includes Mobile Mental Health Treatment and Partial Hospitalization Outpatient Services) under 55 Pa. Code § 1153.14(1), and Outpatient Drug & Alcohol Clinic Services under 55 Pa. Code § 1223.14(2).
6. Will there be a change in MA reimbursements for physical health or behavioral health services provided via telemedicine after May 11, 2023, or will I continue to be reimbursed at the same level for services provided regardless of how they are delivered
DHS will continue to reimburse services delivered via telemedicine at the same rates as in-person delivered services for the MA Fee-for-Service (FFS) Program.
MA MCOs may negotiate payment for services rendered via telemedicine in the MA HealthChoices managed care program. To date, all MCOs are reimbursing for services delivered via telemedicine. DHS cannot require the MCOs to have payment parity for services delivered via telemedicine without a CMS approved directed payment, as MCOs are allowed to negotiate rates.
7. As an MA-enrolled provider, will there be any restrictions on what services I can provide my patients via telemedicine after May 11, 2023?
DHS has released three policies related to telemedicine in physical health, dental services, and behavioral health.
Physical Health: MA Bulletin 99-22-02
Behavioral Health: OMHSAS-22-02 - Revised Guidelines for Delivery of BH Services Through Telehealth 7.1.22.pdf and the related Memorandum OMHSAS_Interim-Telehealth-Guidance-3.30.2023.pdf
Dental Health: MAB2022061301.pdf (pa.gov)
MA providers should consult the appropriate bulletin for the service they are delivering.
MA MCOs may, but are not required to, allow service delivery via telemedicine. MA-enrolled providers should consult with their MCOs on any limitations on the types of services that by be provided via telemedicine.
8. Will commercial insurers be required to reimburse for telemedicine services and to reimburse at the same rate as in-person services after October 31, 2022?
Coverage for, and reimbursement of, services delivered via telemedicine will be dependent on each commercial insurer's coverage and operational policies, as well as the terms of any applicable provider contracts. This includes payment rates, as there are no insurance laws or regulations requiring payment parity. The Pennsylvania Insurance Department (PID) surveyed the commercial insurers for updated information following the end of the COVID-19 Public Health Emergency (PHE). While the services covered by insurers have not been reduced, insurers across the board have reinstated cost-sharing for telehealth appointments following the end of the PHE. Reimbursement rates vary dependent upon the insurance company's provider contracts and member's plan. Insurers noted that they will continue to review their policies in terms of any state/federal guidance moving forward.
9. I provide school-based physical health and behavioral health services and continue to provide care via telemedicine. Will I be allowed to continue to provide services using telemedicine after October 31, 2022?
Coverage for, and reimbursement of, services delivered via telemedicine will continue to be dependent on each commercial insurer's coverage and operational policies, as well as the terms of any applicable provider contracts. Insurers may have policy limitations that prohibit coverage for school-based services. However, state law currently requires all fully insured health plans to cover certain autism services regardless of whether they are provided in a school setting.
In addition, DHS issued a September 2022 Update of the School Based ACCESS Program (SBAP) Handbook allows telehealth for most school-based services. More information on the ACCESS Program can be found here.
10. I work as a licensed professional at a Federally Qualified Health Center (FQHC). Will I be able to bill for services delivered via telemedicine after October 31, 2022?
Yes, as clarified in MA Bulletin 99-22-02, telemedicine remains a mode of service delivery that providers can utilize. Providers that are licensed by the Office of Mental Health and Substance Abuse Services should refer to bulletin OMHSAS-22-02 - Revised Guidelines for Delivery of BH Services Through Telehealth 7.1.22.pdf (pa.gov) when rendering the behavioral health services for which they are licensed. In addition, DHS recently issued MA Bulletin 08-22-13, 27-22-07 related to tele dentistry services that is also relevant to FQHC providers that offer dental services.
11. Will hospitals be permitted to provide services via telemedicine after October 31, 2022?
After October 31, hospitals will continue to be permitted to provide telehealth/telemedicine services in accordance with the Pennsylvania Department of Health's Telemedicine Survey Guidelines. Hospitals providing health care services via telehealth/telemedicine should refer to the guidelines for information on the conditions under which the services can be provided.
12. Will the state licensing boards take action against a Pennsylvania-licensed professional for practicing using telemedicine after October 31, 2022?
A licensee can be disciplined for a violation of a provision in a practice act or regulations of the Board. Healthcare practitioners must also practice within the acceptable and prevailing standard of care. Because the practice acts and regulations do not currently address the provision of health-related services by telehealth/telemedicine, there could be no violation for simply using telehealth/telemedicine after October 31, 2022, and in general, there is nothing that would prohibit licensees from using telehealth/telemedicine so long as doing so complies with the standards of acceptable and prevailing medical practice. This was true even prior to the pandemic. It is possible, however, that violations of certain regulations could occur in some circumstances where telemedicine is used. For example, there are regulations that specifically call for a physical examination to be conducted. If a Pennsylvania-licensed practitioner instead "examines" the patient via telemedicine, there could be a violation of the regulation. The violation would not be for the practitioner's use of telemedicine, but rather the practitioner's failure to conduct the required physical examination.
13. How will substance use disorder (SUD) treatment and Medication Assisted Treatment (MAT) be impacted by the suspended regulations ending on October 31, 2022?
The Department of Drug and Alcohol Programs (DDAP) currently has two regulatory suspensions that allow for the initial evaluation for a patient who will be treated with buprenorphine for their opioid use disorder (OUD) at a narcotic treatment provider (NTP) to be completed via telehealth. The suspension of 28 Pa. Code § 715.9(a)(4) permits NTPs to admit patients for buprenorphine treatment without an initial in-person physical exam, and the suspension of 28 Pa. Code § 715.6(d) relaxes the requirement for NTPs to have narcotic treatment physician services onsite. Under Act 30 of 2022, these regulatory suspensions are "related to federal exemptions granted under the federal public health emergency declaration" and will continue until "the last day federal exemptions granted under the federal public health emergency declaration are authorized." The Substance Abuse and Mental Health Services Administration (SAMHSA) issued a notice of proposed rulemaking in December 2022 that proposed the use of telehealth in initiating buprenorphine at NTPs, among other changes. In June 2022, SAMHSA announced to State Opioid Treatment Authorities that flexibilities around telehealth evaluations before buprenorphine treatment at NTPs, specifically, will be extended for one year after the end of the PHE (now May 11, 2024). SAMHSA reaffirmed this extension on May 10, 2023, and DDAP submitted its written concurrence on the same day that NTPs in Pennsylvania may continue to exercise these flexibilities during this time period.
On September 4, 2020, the Department of State issued a waiver suspending the State Board of Medicine's regulation at 49 Pa. Code § 16.92(b)(1), which requires an initial physical examination of a patient prior to prescribing buprenorphine for the treatment of opioid use disorder. This waiver was sought specifically to complement DDAP's suspension of 28 Pa. Code § 715.9(a)(4)).
This waiver "relates to Federal exemptions granted under the Federal public health emergency declaration," specifically the exemptions granted by the federal Substance Abuse and Mental Health Services Administration (SAMHSA) and the U.S. Drug Enforcement Agency (DEA).
On May 9, 2023, DEA released a temporary rule to
extend COVID-19 telemedicine flexibilities for controlled substance prescriptions for 6 months. Current flexibilities are in place until November 11, 2023. DOS has indicated that their regulation at 49 Pa. Code § 16.92(b)(1) will remain suspended accordingly. Clinicians may treat new patients with buprenorphine following a telehealth evaluation through November 11, 2023. For any practitioner-patient relationship established on or before November 11, 2023, a one-year grace period will continue through November 11, 2024. This grace period not only allows clinicians the ability to continue their established telemedicine relationships with patients under the flexibilities that were in place under the COVID-19 PHE but also allows clinicians a period of time to prepare patients for upcoming changes in federal regulations. In the meantime, DEA is continuing to carefully evaluate comments received on its proposed rulemaking
to make a form of this flexibility permanent.
It is important to note that, to be considered within the acceptable and prevailing standard of care, the physician/prescriber must be following the applicable SAMHSA/DEA guidelines as well as all applicable State laws and rules. Prescribers licensed by the State Board of Medicine or State Board of Osteopathic Medicine are encouraged to regularly review the Boards' website and regulations linked through the respective Board websites.
Additional information may be found at:
The Physical Evaluation of Patients Who Will Be Treated With Buprenorphine at Opioid Treatment Programs: https://www.samhsa.gov/medications-substance-use-disorders/statutes-regulations-guidelines/buprenorphine-at-opioid-treatment-programs
DEA guidance to qualifying practitioners: (DEA-DC-022)(DEA068) DEA SAMHSA buprenorphine telemedicine (Final) +Esign.pdf (usdoj.gov)
Temporary Extension of COVID-19 Telemedicine Flexibilities for Prescription of Controlled Substances: https://public-inspection.federalregister.gov/2023-09936.pdf
Federal Register -- Expansion of Induction of Buprenorphine via Telemedicine Encounter
14. How will the use of telemedicine by out-of-state practitioners be impacted?
As was the case prior to the pandemic, practitioners wishing to provide services to individuals in Pennsylvania need to be licensed in Pennsylvania in order to practice in Pennsylvania. This holds true whether the provision of services occurs in person or via an electronic interaction such as a telehealth consultation. Practitioners who are not licensed in Pennsylvania and wish to provide services to individuals in Pennsylvania via telemedicine or otherwise may apply for licensure here: https://www.pals.pa.gov