The unprecedented public health emergency created by the 2019 novel coronavirus (COVID-19) has sparked action by state and federal regulators to ensure greater access to healthcare, while simultaneously limiting the spread of COVID-19. On March 9, 2020, Gov. J. B. Pritzker declared a disaster within the state of Illinois, clearing the way for emergency rulemaking and increasing the availability of financial resources during this crisis.
As explained in McGuireWoods’ March 31 alert “Due to COVID-19, Federal Agencies Reduce Barriers to Controlled Substances and Increase Access to Care,” the federal government has taken several steps to allow patients to receive more care via telehealth. Illinois is among the states that have issued executive orders and enacted emergency rules in an effort to increase access to healthcare, while embracing the need for social distancing.
1. Expansion of Telehealth Services
On March 19, Gov. Pritzker issued Executive Order 2020-09 to expand telehealth services and protect healthcare providers during the COVID-19 pandemic. Among other things, the order expands the types of technology that can be used to provide telehealth services. Under the order, providers may provide clinically appropriate services, regardless of location, using various forms of communication including the applications commonly available on smartphones. Importantly, for the duration of the public health emergency, these methods do not have to meet the Health Insurance Portability and Accountability Act (HIPAA) standards due to a waiver issued by the U.S. Department of Health and Human Services’ Office for Civil Rights.
The order also requires all health insurers regulated by the state to cover the cost of telehealth provided by in-network providers to deliver clinically appropriate, medically necessary services. The order applies to the provision of care for mental health and substance abuse, as well as general healthcare needs. In sum, the order provides that health insurers may not impose unnecessary utilization reviews or any treatment limitations that are more stringent than those imposed on in-person care. Insurers may not impose prior authorization requirements for in-network providers, solely because the services are being rendered via telehealth. Further, the order prohibits cost-sharing (copayments, deductibles or coinsurance) for such services, with certain exceptions for enrollees in high-deductible health plans. Under the executive order, telehealth services may be provided by physicians, physician’s assistants, optometrists, advanced practice registered nurses, clinical psychologists, prescribing psychologists, dentists, occupational therapists, pharmacists, physical therapists, clinical social workers, speech-language pathologists, audiologists, hearing instrument dispensers, other mental health providers, and other substance use disorder treatment providers, as long as they are licensed, registered, certified, or authorized to practice in the state of Illinois.
2. Broadening Telehealth Rules to Accommodate New Places of Service and Means of Engagement
An emergency amendment to 89 Ill. Adm. Code 140.403, which became effective March 20, 2020, for a maximum of 150 days, significantly broadens state telehealth rules to accommodate new places of service and means of engagement during the COVID-19 public health emergency. The amendment allows medical providers to use existing and readily available technology to deliver care, therefore broadening coverage and encouraging increased access to care.
Under the amendment, the state will reimburse for medically necessary and clinically appropriate telehealth services with dates of service on or after March 9, 2020, until the public health emergency no longer exists, provided that the telehealth services are delivered using (a) an “interactive telecommunication system” or “telecommunication system” or (b) a communication system where information exchanged between the practitioner and the patient during the course of the synchronous telehealth service is of an amount and nature that would be sufficient to meet the key components and requirements of the same service when rendered via face-to-face interaction.
Under 89 Ill. Admin. Code Section 140.403(a), an “Interactive Telecommunication System” means multimedia communications equipment that includes, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and the distant site provider. Telephones, facsimile machines and electronic mail systems do not meet the definition of an interactive telecommunication system. “Telecommunication System” means an asynchronous store and forward technology and/or an interactive telecommunication system that is used to transmit data between the originating and distant sites.
Typically, in order for telehealth services to be reimbursable by the state, telehealth services must be delivered using these specified means of communication to the patient in an “originating site” by a provider in a “distant site.” Under the amended rules, any site that allows for the patient to use a communication or technology system as defined above may be an originating site, including a patient’s place of residence located within the state of Illinois or other temporary location within or outside the state of Illinois.
In addition, the state will also reimburse certain services that do not meet the definition of “telehealth services” during the COVID-19 public health emergency. Services include virtual check-ins and e-visits, which are “brief communication technology-based services” that allow patients to talk to medical practitioners using a device such as a phone, integrated audio/video system or captured video image, without going to the doctor’s office. Services can be provided for primary care as well as other services, such as behavioral health services.
McGuireWoods has a dedicated team of experienced lawyers who will continue to monitor state and federal responses to COVID-19. Please contact the authors of this alert with any questions and for additional guidance on how other COVID-19 considerations may impact prescriptions and drugs. McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.
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