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State Guidance Extends Emergency-Era Telehealth Allowances

Late last week and throughout the weekend, the state Department of Health came out with a set of guidance documents extending the continuity of telehealth service allowances now that the state’s declared emergency for COVID-19 has ended.

These telehealth flexibilities are among several regulatory waivers for which HCA has sought extensions in our outreach to the Department last week following the Governor’s announcement that the emergency declaration was being lifted. (See related article here.) As noted in the state’s guidance, the federal government’s emergency declaration, however, remains in effect.

HCA will be confirming that this new guidance and emergency rule, issued on June 25, will allow home care and hospice providers to continue to use telehealth as allowed under the public health emergency. Our understanding is that those allowances were otherwise set to expire on July 5.

Guidance on Telehealth Use

On June 25, the state Department of Health (DOH) posted “Comprehensive Guidance Regarding Use of Telehealth including Telephonic Services.” It states an intent “to extend the expansion for the ability of all Medicaid providers in all situations to use a wide variety of communication methods to deliver services remotely during the COVID-19 federally declared Public Health Emergency, to the extent it is appropriate for the care of the member.”

According to the guidance, this continuation is effective immediately and shall remain in effect for the remainder of the federally declared public health emergency, or until the issuance of subsequent guidance by DOH prior to the expiration of such public health emergency declaration.

Guidance on Telehealth Billing

On June 25, DOH also posted an emergency rule on state reimbursement for telehealth services. Section 538.1 on “authorized providers” reads in part that “all Medicaid providers authorized to provide in-person services are authorized to provide such services via telehealth, as long as such telehealth services are appropriate to meet a patient’s health care needs and are within a provider’s scope of practice.”

Under Needs and Benefits, it states:

These regulatory amendments are needed to ensure continuity of care provided to Medicaid enrollees during the transition from telehealth services provided during the public health emergency and after the public health emergency ends. During the public health emergency, pursuant to Executive Orders that waived certain New York State laws and regulatory requirements related to telehealth, all Medicaid providers were authorized to utilize telehealth, including audio-only telephone or other audio-only technology. Since these Executive Orders expired on June 24, 2021, this regulation is required to authorize Medicaid providers to continuously provide services pursuant to these flexibilities to ensure continuity of care.

It continues:

As many of these [telehealth] flexibilities are intended to be made permanent after the public health emergency through enactment of regulations by the Department, and given that Centers for Medicare and Medicaid Services has authorized continued use of telehealth through modalities that align with Article 29-G of the Public Health Law, the Department is issuing these emergency regulations in order to ensure ongoing and continuous access to telehealth services for Medicaid members.

This continuous access is particularly important for members of the Medicaid population who are unable to access services in person, or who continue to be at risk for COVID-19, because they are ineligible for the vaccine, including children under age 12 and individuals for whom the vaccine is currently medically contraindicated.

While these flexibilities apply to Medicaid, HCA reminds providers that the federal government has not permitted billing of telehealth services under the Medicare home health benefit, and other non-Medicaid coverage or authorization limitations may also otherwise apply.

Please stay tuned for further information and confirmation from the Department on this important issue.