With the emergence of the COVID-19 pandemic in the United States in early 2020, both the federal government and the State of Kansas responded by issuing orders to waive regulations pertaining to telehealth to ease the access to medical care for individuals, in light of social distancing measures to prevent the transmission of COVID-19. This memorandum provides an overview of the federal government changes to telehealth regulations, the Kansas telehealth regulations, the Kansas telehealth flexibilities initiated as they relate to the KanCare program and executive orders, and other flexibilities related to prescriptions and Health Insurance Portability and Accountability Act (HIPAA) patient communications.
According to the National Conference of State Legislatures, “telehealth” is defined differently by nearly all states and is even defined differently by various entities within the federal government. Generally, “telemedicine” refers to clinical services, and “telehealth” encompasses a broader scope and can refer to remote non-clinical services, including provider training, administrative meetings, and continuing medical education, in addition to clinical services. Telehealth and telemedicine can often be used interchangeably.
The Kansas Legislative Research Department (KLRD) provides several memorandums concerning telehealth, including an overview on telehealth and telemedicine definitions, coverage of telehealth services in Medicaid and Medicare, and telemedicine laws and recent legislation in nearby states, which may be found on the KLRD website.
Federal Actions
CARES Act Changes to Telehealth
On March 6, 2020, Congress passed the Coronavirus Preparedness and Response (CPR) Supplemental Appropriations Act, 2020 [PL 116-123]. The CPR Act facilitated changes for telehealth services, providing the Secretary of Health and Human Services (Secretary) the authority to temporarily waive or modify Medicare requirements related to telehealth services during the emergency period.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act, [PL 116-136] enacted on March 7, 2020, included funds for the provision of telehealth services and increased telehealth capacity through the purchase of equipment and other methods. More specifically, telehealth provisions in the CARES Act:
- Appropriated $29 million for each of federal fiscal years 2021 through 2025 for telehealth grants, including the Telehealth Network Grant Program that awards eligible entities for projects that demonstrate telehealth technologies can be used in rural areas and medically-underserved areas;
- Allowed under Section 3701, for plans beginning on or before December 31, 2020, high-deductible health plans with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible;
- Granted the Secretary the authority to waive provisions with regard to payment for telehealth services and, for telehealth services provided during the COVID-19 emergency period, removed the requirement that providers of telehealth services have treated the Medicare beneficiary receiving telehealth services in the last three years;
- Allowed federally qualified health centers (FQHCs) and rural health clinics (RHCs) to provide telehealth services to Medicare beneficiaries during the COVID-19 emergency period;
- Allowed Medicare beneficiaries receiving hospice care to have a face-to-face encounter via telehealth with a hospice physician or nurse practitioner to recertify continued eligibility for hospice care during the COVID-19 emergency period;
- Required the Secretary to issue clarifying guidance regarding the use of telecommunications systems for home health services, including remote patient monitoring, during the COVID-19 emergency period;
- Allocated $200 million to the Federal Communications Commission (FCC) for salaries and expenses to respond to the COVID-19 pandemic, domestically or internationally, specifically authorizing the use of funds to support efforts of health care providers to address the coronavirus by providing telecommunications services, information services, and devices necessary to enable the provision of telehealth services during an emergency period; and
- Allocated $180 million to the Health Resources and Services Administration (agency of the U.S. Department of Health and Human Services [HHS]) to carry out telehealth and rural health activities, of which no less than $15 million was required to be allocated to tribes, tribal organizations, urban Indian health organizations, or health service providers to tribes.
Some flexibilities granted in the CARES Act continued through and after the declared COVID-19 public health emergency (PHE) due to actions by the Secretary and Congress. These provisions are discussed in the following section.
Federal Regulations
In certain emergency circumstances the Secretary, using Section 1135 of the Social Security Act, may temporarily modify or waive certain Medicare, Medicaid, and Children’s Health Insurance Plan (CHIP) regulations using blanket waivers. The Centers for Medicare and Medicaid Services (CMS) published guidance on these changes (effective March 1, 2020, through the end of the PHE), which can be found at https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.
Medicare Telehealth Policies
The following are some of the major changes to Medicare telehealth policy made by the Secretary due to the COVID-19 PHE:
- Allowed certain practitioners to bill for telehealth services that were not previously billable. This included physical therapists, occupational therapists, speech language pathologists, and others;
- Allowed the use of audio-only equipment to furnish services described by the codes for audio-only telephone evaluation and management services and behavioral health counseling and educational services;
- Waived certain regulations for critical access hospitals regarding telemedicine and made it easier for telemedicine services to be furnished to the hospital’s patients though an agreement with an off-site hospital;
- Allowed physicians and non-physician practitioners to perform in-person visits for nursing home residents in skilled nursing facilities and visits to be conducted, as appropriate, via telehealth options;
- Allowed physicians and other practitioners to render telehealth services from their homes without reporting their home address on their Medicare enrollment while continuing to bill from their currently enrolled location; and
- Removed limitations on where Medicare patients are eligible for telehealth during the emergency, in particular, allowing patients outside of rural areas and patients in their homes to be eligible.
Waivers in effect and authorized under Section 1135 of the Social Security Act were in place until the end of the PHE, May 11, 2023.
Permanent changes to Medicare telehealth. The Consolidated Appropriations Acts of 2021 and 2022, passed by Congress, authorized permanent changes to Medicare telehealth policies, including:
- FQHCs and RHCs may serve as a distant site provider for behavioral/mental telehealth services;
- Medicare patients may receive telehealth services for behavioral/mental health care in their home;
- No geographic restrictions for originating site for behavioral/mental telehealth services;
- Behavioral/mental telehealth services may be delivered using audio-only communication platforms; and
- Rural emergency hospitals (REHs) are eligible originating sites for telehealth.
Temporary changes to Medicare telehealth. The Consolidated Appropriations Act, 2023 authorized the following changes to Medicare telehealth policies through December 31, 2024:
- FQHCs and RHCs may serve as a distant site provider for non-behavioral/mental telehealth services;
- Medicare patients may receive telehealth services in their home;
- No geographic restrictions for originating site for non-behavioral/mental telehealth services;
- Some non-behavioral/mental telehealth services may be delivered using audio-only communication platforms;
- An in-person visit within six months of an initial behavioral/mental telehealth service, and annually thereafter, is not required; and
- Telehealth services may be provided by all eligible Medicare providers.
The CY 2024 Physician Fee Schedule Proposed Rule from CMS implements the telehealth flexibilities passed in the Consolidated Appropriations Act, 2023, through the end of 2024. The CY 2024 Physician Fee Schedule Proposed Rule also proposes to simplify CMS’s process for considering requests to add, remove, or change services on the Medicare Telehealth Services List; change the payment methodology for Medicare mental health services provided via telehealth; and extend permitting direct supervision of practitioners via telehealth, among other policies.
Federal Telehealth Grants
With initial funding of $200 million provided through the CARES Act, the FCC administered grant funding to health care providers through the COVID-19 Telehealth Program to help provide connected care services to patients in their homes or mobile locations. Ten Kansas providers received grants in the first round of applications, totaling more than $500,000. The Consolidated Appropriations Act, 2021, provided additional funding for the program, and six Kansas providers received grants in the second round of funding, totaling more than $3 million.
Prescription Flexibilities
The U.S. Drug Enforcement Administration (DEA) Diversion Control Division issued guidance on many areas concerning controlled substances and electronic prescribing during the COVID-19 pandemic. The Controlled Substances Act contains exceptions to the general rule that a prescription for a controlled substance issued by means of the Internet (including telemedicine) must generally be predicated on an in-person medical evaluation. One of these exceptions is when the Secretary has declared a public health emergency.
As of March 16, 2020, DEA-registered practitioners in all areas of the United States are permitted to issue prescriptions for all Schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:
- The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of their professional practice;
- The telemedicine communication is conducted during an audio-visual, real-time, two-way interactive communication system; and
- The practitioner is acting in accordance with applicable federal and state laws.
In October 2023, the DEA announced, jointly with HHS, an extension of the flexibility which allows prescribing practitioners to prescribe controlled medications to a patient via telehealth through December 31, 2024. The DEA is working to promulgate new standards by the fall of 2024.
In 2020, the DEA also announced that practitioners may prescribe buprenorphine to new and existing patients with opioid use disorder via telephone by otherwise authorized practitioners without requiring such practitioners to first conduct an examination of the patient in-person or via telemedicine. In December 2022, Congress passed the Consolidated Appropriations Act, 2023, which removed the federal requirement for health care practitioners to have a waiver to prescribe buprenorphine, increasing access to treatment.
1Buprenorphine is the first medication to treat opioid use disorder that can be prescribed or dispensed in physician offices. It is a opioid partial agonist and produces effects such as euphoria or respiratory depression at low to moderate doses, with weaker effects than full opioid agonists like methadone. When taken as prescribed, buprenorphine diminishes withdrawal symptoms and physical dependency on opioids.
HIPAA Flexibilities
In January 2021, the HHS Office for Civil Rights (OCR) issued a Notification of Enforcement Discretion (Notification) regarding COVID-19 and telehealth communications, effective through the end of the PHE. The Notification stated HIPAA-covered health care providers could, in good faith, provide telehealth services to patients using remote communication technologies, even if the application did not fully comply with HIPAA rules. The OCR would exercise its discretion and would not impose penalties for noncompliance with the regulatory requirements under the HIPAA rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 public health emergency.
The Notification only applied to HIPAA-covered health care providers. A health care provider is a covered entity under HIPAA if it transmits any health information in electronic form in connection with a transaction for which the Secretary has adopted a standard. The Notification applied to all HIPAA-covered health care providers, with no limitations on patients they served with telehealth, including those patients that receive Medicare or Medicaid benefits.
Under the Notification, covered health care providers were authorized to use popular applications to deliver telehealth as long as they were “non-public-facing.” Examples of public-facing applications are Facebook Live and Twitch. Examples of non-public-facing video chat applications include:
- Apple FaceTime;
- Facebook Messenger video chat;
- Google Hangouts video;
- Zoom; and
- Skype.
When the PHE ended on May 11, 2023, providers had a 90-day transition period to bring their telehealth practices into compliance with HIPAA. Since August 10, 2023, health care providers again had to comply with Pre-Notification HIPAA rules regarding telehealth.
Kansas Telehealth Actions
KanCare
On March 20, 2020, the State Medicaid Director sent a communication to CMS detailing the Medicaid requirements that pose challenges for health care delivery in Kansas during the pandemic. On March 24, 2020, CMS sent a response of the different approvals related to the requests, pursuant to Section 1135 of the Social Security Act.
In regard to the reimbursement rates for distance sites, Kansas Medical Assistance Program (KMAP) General Bulletin 20045 stated services delivered through telemedicine would be equivalent to identical services provided in person. The Medicaid fee-for-service fee schedule posted on the KMAP website was to serve as the source for reimbursement by code. The bulletin stated there would be no change in reimbursement levels for existing originating sites. In the instance that “home” was the originating site, then there would be no originating site fee paid for that claim.
The following are some of the flexibilities that Kansans were able to utilize during the COVID-19 pandemic for telehealth services:
- No geographic limitations for telehealth services (e.g., services are not limited to rural or non-metropolitan service locations);
- The patient’s home was an eligible “originating site” or “patient site” for telehealth services;
- Other non-health care facilities (e.g., schools, work sites, libraries) were eligible as originating/patient sites;
- Originating and patient sites, other than the patient’s home, could bill for a facility fee (this also applied to FQHCs and RHCs);
- Providers were allowed to be reimbursed for certain codes when the originating telehealth site place of service was “home” (Place of Service Code 12);
- A prior existing relationship with a patient was not required to provide telehealth services;
- Any eligible member service could be provided via telehealth when medically-necessary and appropriate;
- Patient co-pays and out-of-pocket costs still applied unless waived by the payor or plan (not applicable for COVID-19 services);
- Prior authorization was not required for telehealth services, unless in-person services also require prior authorization;
- For some services, providers could utilize telephone/audio-only visits;
- Verbal consent, and not requiring written consent of the patient for some services, was allowed; and
- Personal devices such as smartphones and tablets could be used to deliver telehealth services (Kansas allowed for some, but required HIPAA compliance).
These flexibilities ended with the PHE on May 11, 2023.
KanCare currently covers live video telemedicine for certain services and remote patient monitoring through home health agencies with prior authorization. Telephone evaluation and management services provided by a qualified health care professional to an established patient, parent, or guardian is reimbursed for certain codes. Insurers, including Medicaid, cannot exclude from coverage a service solely because the service is provided through telemedicine when such service is delivered by a health care provider (KSA 40-2,213(b)).
State Employee Health Plan
The Kansas State Employee Health Plan (SEHP) issued a memorandum related to benefits and COVID-19. Through December 31, 2020, SEHP partners Aetna Better Health of Kansas and Blue Cross Blue Shield of Kansas (BCBSKS)provided 24/7 access to telehealth services with a virtual doctor’s office and waived the member cost share.
After the PHE, Aetna and BCBSKS continue to provide 24/7 access to telehealth services for SEHP members. Aetna offers access to services through Teladoc by phone, video, or app, with copayments ranging from $10 to $190 depending on the insurance plan and type of visit. BCBSKS offers telehealth services through Amwell via smartphone or app, with copayments beginning at $10 or $59 depending on the plan and type of consultation.
Executive Orders
On March 20, 2020, the Governor signed Executive Order No. 20-08, which temporarily expanded telemedicine access and addressed certain licensing requirements to combat the effects of COVID-19. The order encouraged physicians to utilize telemedicine and prevented the Kansas State Board of Healing Arts (Board) from enforcing any statute, rule, or regulation that would require physicians to conduct an in-person examination of a patient prior to prescribing medication, including controlled substances. The order allowed for out-of-state physicians, who hold unrestricted licenses to practice medicine in the state in which they practice medicine and are not the subject of an investigation or disciplinary proceeding, to treat Kansans through telemedicine upon notice to the Board.
Executive Order No. 20-35 extended the provisions of Executive Order No. 20-08 until June 30, 2020.
The Office of Recovery; Broadbrand Development
The Governor established the Office of Recovery within the Office of the Governor in 2020; within the Office of Recovery, the Strengthening People and Revitalizing Kansas (SPARK) Task Force was created, consisting of a 5-member executive committee and a 15-member steering committee. The SPARK Task Force was tasked with making recommendations to the Governor on how $1.03 billion state Coronavirus Relief Fund moneys, received through the CARES Act and appropriated in 2020 Special Session HB 2016, should be allocated. An Investment Dashboard on the Office of Recovery’s website outlines the various programs and funding levels created to expend the money before December 30, 2020.
According to the Investment Dashboard, $10 million of the funds was allocated through the Kansas Department of Commerce to address broadband connectivity issues including barriers to telehealth and to create a Provider Partnership Support Program that works with internet service providers to expedite deployment of assistance for vulnerable populations and families.
On July 14, 2022, the Governor announced an $83.5 million grant program through the Kansas Department of Commerce’s Office of Broadband Development, part of Kansas’ Coronavirus Capital Projects Fund (CPF) broadband infrastructure plan. The program prioritizes bringing broadband infrastructure to areas that lack access to high-speed internet in order to support work, education, and health care monitoring. Applicants to the program were required to match some percentage of awarded funds, with lower match amounts for lower-served areas of the state. The third and final round of grantees were announced in January 2023. A total of 24 projects were awarded grant funds, pledging to provide 24,500 homes, businesses, schools, health care facilities, and other public institutions access to fast, reliable internet for the first time. Projects are expected to be completed by the end of 2026.
by Leighann Thone, PhD
Research Analyst
785-296-4181
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