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license, establishing a bona fide prescriber-patient relationship, obtaining and reviewing the patient’s MAPS report, etc.). Consideration should also be given to compliance with federal controlled substance laws, including whether such laws are applicable during
the declared COVID-19 public health emergency. For example, the Drug Enforcement Administration has confirmed that the federal Controlled Substance Act’s requirement to perform at least one in-person medical evaluation before prescribing controlled substances via the internet does not apply during a declared public health emergency, such as the current COVID-19 public health emergency.
Recent State and Federal Legislation and Rules Expanding Access to and Coverage for Telemedicine Services
The Michigan Insurance Code prohibits health insurers and HMOs from requiring face-to-face contact between a healthcare professional and a patient for services which are appropriately provided through telemedicine, as determined by the insurer or HMO.
On June 24, 2020, the Michigan legislature enacted
a series of bills intended to further expand access to
and coverage for telemedicine services. For example, Public Act 97 of 2020 amended the Insurance Code’s definition of “telemedicine” to include services rendered through “store and forward online messaging” and to remove the requirement that healthcare professionals use “real-time” telecommunications systems which enable patients to interact with the off-site healthcare professional “at the time the services are provided.”
In addition, Public Acts 100 and 101 of 2020 require
the Michigan Department of Health and Human Services (MDHHS) to provide, through the Medicaid and Healthy Michigan programs, coverage for remote patient monitoring and telemedicine services which meet certain criteria.
For Medicare beneficiaries, the federal Coronavirus Preparedness and Response Supplemental Appropriations Act was enacted to permit the U.S. Department of Health and Human Services (HHS)
to waive certain Medicare telehealth payment requirements during the COVID-19 public health emergency, including permitting the use of telephones with audio and video capabilities and allowing beneficiaries in all areas of the country (not just rural areas) to receive telehealth services, including from their homes. In addition, in December 2020, the Centers for Medicare & Medicaid Services (CMS) released its annual Physician Fee Schedule final rule, which adds more than 60 telehealth services that will be covered by Medicare even beyond the end of the declared COVID-19 public health emergency.
Importantly, telemedicine services must still comply with all requirements specified by the applicable insurer or other payor in order for the services to be covered
by the payor. Physicians should check each payor’s coverage and reimbursement criteria and requirements, including any required CPT codes, modifiers or other conditions for payment, and monitor for changes to any temporary coverage and reimbursement criteria imposed during the COVID-19 pandemic.
*Kathleen A. Westfall is a member of Kerr, Russell and Weber, PLC. Her practice focuses on health care and insurance. For more information about this article, Mrs. Westfall may be contacted at (313) 961-0200, kwestfall@kerr-russell.com. This publication is furnished for informational purposes only, and receipt hereof does not establish an attorney-client relationship. It does not communicate legal advice by the Wayne County Medical Society, Mrs. Westfall or Kerr, Russell and Weber,PLC. © 2021 Kerr, Russell and Weber, PLC
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