Massachusetts Telehealth Legislation Paves Way for Sweeping Changes

Insurance coverage, practice standards and credentialing could be impacted.

The Massachusetts House of Representatives has passed sweeping telehealth legislation, accompanying a companion bill passed by the Senate in November 2017.  While Massachusetts is often considered a leader in health care innovation, the Commonwealth has not enacted significant legislation in this area for several years, and is among the minority of states without a meaningful telehealth insurance coverage law.  The new legislation — The Honorable Peter V. Kocot Act to Enhance Access to High Quality, Affordable and Transparent Healthcare in the Commonwealth — could be considered the biggest legislative change to telehealth in Massachusetts to date.

The act is not yet law and remains in committee.  Sen. Jim Welch, Chairman of the Committee on Health Care Financing, said he believes lawmakers will be able to agree on a final bill before the legislative session ends July 31.

Insurance Coverage of Telehealth Services

The act would institute requirements for insurance coverage of telehealth services. Health maintenance organizations, preferred provider organizations, individual, group blanket or general insurance policies, non-profit hospital service corporations and medical services corporations could:

“not decline to provide coverage for health care services solely on the basis that those services were delivered by way of telemedicine by a contracted health care provider if: (i) the health care services are covered by way of in-person consultation or delivery; and (ii) the health care services may be appropriately provided through the use of telemedicine.”

There is another provision in the act that would encourage, but not require, Medicaid-managed care organizations in Massachusetts to cover services delivered via telemedicine.

Unfortunately, some of the language in the act has echoes to Massachusetts General Law Chapter 175 section 47BB, which was enacted in 2012 and purported to be a telehealth insurance coverage law. However, upon analysis of the actual statutory language, most health plans concluded the statute did not actually require them to cover services delivered via telemedicine. This is an issue to which telemedicine providers in Massachusetts should pay particular attention, or else history risks repeating itself.

The language in the act applying to the Massachusetts group insurance commission reads as follows: “the group insurance commission shall provide coverage for health care services through the use of telemedicine by a contracted health care provider . . .” This language is written as an affirmative mandate, making expressly clear the Massachusetts group insurance commission must provide coverage of services delivered via telemedicine. This is a material departure from the act’s language applying to other types of health plans. Accordingly, while the act’s statutory provisions overall would help move Massachusetts towards parity in telehealth coverage, the language used is far from ideal and could benefit from drawing on the type of model language considered in other states.

In addition to coverage, there are several other provisions relevant to insurance.

• Insurers would be able to use procedures such as utilization review and prior authorization “to determine the appropriateness of telemedicine as a means of delivering a health care service, provided that the same process is utilized as if the service was provided via in-person consultation or delivery.”
• Insurers would not be required to “reimburse a health care provider for a health care service that is not a covered benefit under the plan nor reimburse a health care provider not contracted under the plan.”
• Insurers that “reimburse a provider with a global payment…shall account for the provision of telemedicine services to set the global payment amount.”
• Insurers “may include a deductible, copayment or coinsurance requirement for a health care service provided through telemedicine as long as the deductible, copayment or coinsurance does not exceed the deductible, copayment or coinsurance applicable to an in-person consultation or in-person delivery of services.”
• Insurers cannot require “a health care provider…to document a barrier to an in-person visit, nor shall the type of setting where telemedicine is provided be limited for health care services provided through telemedicine.”
• Health care services provided by telemedicine shall “conform to the standard of care applicable to the telemedicine provider’s profession and specialty…applicable federal and state health information privacy and security standards as well as standards for informed consent.”

What Else Would the Act Accomplish?

1. Expand the definition of telemedicine

The act defines telemedicine as “the use of interactive audio, video or other electronic media for diagnosis, consultation and treatment of a patient’s physical, oral or mental health; provided however, that ‘telemedicine’ shall not include audio-only telephone, facsimile machine, online questionnaires, texting or text-only e-mail.”  This definition differs from the one currently found in the Massachusetts Board of Registration in Medicine (Medical Board) regulations, which define telemedicine as “the provision of services to a patient by a physician from a distance by electronic communication in order to improve patient care, treatment or services.”

1. Telemedicine Credentialing by Proxy

The act would require the Medical Board to allow “a physician licensed by the board to obtain proxy credentialing and privileging for telemedicine services with other health care providers.” Massachusetts law requires hospitals to credential physicians, and the act would explicitly require the Medical Board to recognize physicians credentialed in this manner.

1. Promulgation of Telehealth Regulations

To its credit, the Massachusetts Medical Board has elected not to issue extensive or onerous telemedicine regulations or practice standards.  If passed, the act would require the Medical Board to “promulgate regulations regarding the appropriate use of telemedicine to provide health care services.”  Such regulations would provide for: 1) prescribing medications; 2) enumerating services that are not appropriate to provide through telemedicine; 3) establishing a patient-provider relationship via telemedicine; 4) applicable consumer protections and 5) ensuring that telemedicine services comply with appropriate standards of care.

1. Health Policy Commission: Health Care Payment Reform Fund

The Massachusetts Health Policy Commission administers a fund to foster innovation in health care payment reform.  The Act would require the Commission to consider funding proposals that “support the evaluation of telemedicine, mobile integrated health, digital health and other connected health technologies to improve health outcomes among underserved patients with chronic diseases.”

What’s Next for Telehealth in Massachusetts?

If passed, the act has the potential to make significant changes to the current Massachusetts telehealth landscape. Telehealth companies based or operating in Massachusetts should consider making their voice heard regarding concerns with, or praise for, this notable legislation.

Co-author Olivia King is a summer associate and Mayo-Foley Health Law Fellow at Foley & Lardner LLP, and student at Boston University School of Law, where she serves as Symposium Editor of the American Journal of Law and Medicine.