Telehealth A FIFTY STATE SURVEY SECOND EDITION

Telehealth A FIFTY STATE SURVEY SECOND EDITION

CONTRIBUTORS The American Health Lawyers Association is grateful to Victoria C. Ekeanyanwu, K. Dean Hendrick, Cara R. Tucker, and Sheng (Lois) Liu for their significant research assistance on this 2nd edition of Telehealth: A Fifty State Survey. AHLA also thanks Haley E. White 19, Antonin Scalia Law School at George Mason University for her assistance on this publication. 2017 American Health Lawyers Association 1620 Eye Street, NW, 6th Floor Washington, DC 20006-4010 www.healthlawyers.org info@healthlawyers.org All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without the express written permission of the publisher. This publication is designed to provide accurate and authoritative information with respect to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. From a declaration of the American Bar Association. Printed in the U.S.A.

DEFINITION Alaska Administrative Code > Title 7. Health and Social Services > Part 8. Medicaid Coverage and Payment > Chapter 110. Medicaid Coverage; Professional Services > Article 15. Telemedicine Services Definitions (Alaska Admin. Code tit. 7, 110.639) (4) Telemedicine means the practice of health care delivery, evaluation, diagnosis, consultation, or treatment, using the transfer of medical data, audio, visual, or data communications that are performed over two or more locations between providers who are physically separated from the recipient or from each other. LICENSURE Alaska State Medical Board > Policies and Procedures > Section 6 Board Issued Guidelines > Telemedicine (Last revised November 7, 2014) In order to provide care for a patient in the State of Alaska (including reading and interpreting films, samples, or images, or otherwise diagnosing, treating, or rendering an opinion), a physician must hold a current, active license issued by the Alaska State Medical Board. This requirement also applies to second opinions if the physician is charging a fee for providing the opinion. The only exception is for a curbside opinion given as a courtesy to a colleague (a licensed physician) for which there is no charge. REIMBURSEMENT PRIVATE INSURANCE Nothing specific to telemedicine. MEDICAID Alaska Administrative Code > Title 7. Health and Social Services > Part 8. Medicaid Coverage and Payment > Chapter 110. Medicaid Coverage; Professional Services > Article 15. Telemedicine Services Scope (Alaska Admin. Code tit. 7, 110.620) (a) The department will pay for medical services furnished through telemedicine applications as an alternative to traditional methods of delivering services to Medicaid recipients as provided in AS 47.07. (b) For a provider to receive payment under 7 AAC 110.620 7 AAC 110.639, the provider s use of telemedicine applications must comply with the standards set out in AS 47.07 and 7 AAC 105 7 AAC 160 for the medical service provided by the type of provider, including (1) provisions that affect the efficiency, economy, and quality of service; and (2) coverage limitations. 10

Telemedicine applications; limitations (Alaska Admin. Code tit. 7, 110.625) (a) The department will pay a provider for a telemedicine application, if the provider provided the medical services through one of the following methods of delivery in the specified manner: (1) live or interactive; to be eligible for payment under this paragraph, the service must be provided through the use of camera, video, or dedicated audio conference equipment on a real-time basis; medical services provided by a telephone that is not part of a dedicated audio conference system or by a facsimile machine are not eligible for payment under this paragraph; (2) store-and-forward; to be eligible for payment under this paragraph, the service must be provided through the transference of digital images, sounds, or previously recorded video from one location to another to allow a consulting provider to obtain information, analyze it, and report back to the referring provider; (3) self-monitoring or testing; to be eligible for payment under this paragraph, the services must be provided by a telemedicine application based in the recipient s home, with the provider only indirectly involved in the provision of the service. (b) The department will only make a payment for a telemedicine application if the service is limited to: (1) an initial visit; (2) a follow-up visit; (3) a consultation made to confirm a diagnosis; (4) a diagnostic, therapeutic, or interpretive service; (5) a psychiatric or substance abuse assessment; (6) psychotherapy; or (7) pharmacological management services on an individual recipient basis. Conditions for payment (Alaska Admin. Code tit. 7, 110.630) (a) The department will pay for telemedicine applications provided by a treating, consulting, presenting, or referring provider for a medical service covered by Medicaid and provided within the scope of the provider s license. (b) A treating or consulting provider must use applicable modifiers as described in 7 AAC 145.050 for billing for a telemedicine application. (c) A presenting, referring, or consulting provider is subject to the conditions for payment that are described in 7 AAC 145.005. (d) A presenting provider is only eligible to receive Medicaid payment for a live or interactive telemedicine application as described in 7 AAC 110.625(a) (1). Exclusions (Alaska Admin. Code tit. 7, 110.635) (a) The department will NOT pay for the following services provided by telemedicine application: (1) home and community-based waiver services; (2) pharmacy services; (3) durable medical equipment services; (4) transportation services; (5) accommodation services; (6) end-stage renal disease services; (7) direct-entry midwife services; (8) private-duty nursing services; 11

(9) personal care assistant services; (10) visual care, dispensing, or optician services. (b) The department will pay only for professional services for a telemedicine application of service. The department will not pay for the use of technological equipment and systems associated with a telemedicine application to render the service. Alaska Administrative Code > Title 7. Health and Social Services > Part 8. Medicaid Coverage and Payment > Chapter 135. Medicaid Coverage; Behavioral Health Services > Article 2. Medicaid Behavioral Health Services Facilitation of a telemedicine session (Alaska Admin. Code tit. 7, 135.290) (a) The department will pay a community behavioral health services provider or a mental health physician clinic for facilitation of a telemedicine session if the facilitating provider (1) provides the telemedicine communication equipment; (2) establishes the electronic connection used by the treating provider and the recipient; and (3) remains available during the telemedicine session to reestablish the electronic connection if that connection fails before the intended end of the telemedicine session. (b) The facilitating provider must make a note in the recipient s clinical record summarizing the facilitation of each telemedicine session. The facilitating provider is not required to document a clinical problem or treatment goal in the summarizing note under this subsection. Alaska Administrative Code > Title 7. Health and Social Services > Part 8. Medicaid Coverage and Payment > Chapter 145. Medicaid Payment Rates > Article 3. Payment Rates; Professional Services Telemedicine payment rates (Alaska Admin. Code tit. 7, 145.270) (a) The department will pay for a service rendered by a consulting or referring provider by a telemedicine application in accordance with 7 AAC 145.020. (b) Payment to the presenting provider is limited to the rate established for brief evaluation and management of an established patient. (c) The department will pay the receiving provider in the same manner as payment is made for the same service provided through traditional mode of delivery, not to exceed 100 percent of the rate established under 7 AAC 145.050. Alaska Medical Assistance Provider Billing Manual: Physician, ANP, PA > I. Physician > Physician, Advanced Nurse Practitioner, and Physician Assistant Services > Medicaid-Covered Services> Telemedicine Alaska Medicaid will pay for a covered medical service furnished through telemedicine application if the service is n Covered under traditional, non-telemedicine methods n Provided by a treating, consulting, presenting, or referring provider n Appropriate for provision via telemedicine Covered Services Covered telemedicine services are limited to: n An initial visit n One follow-up visit n A consultation to confirm a diagnosis 12

n Diagnostic, therapeutic or interpretive services n A psychiatric or substance abuse assessment n Psychotherapy n Pharmacological management services on an individual recipient basis Telemedicine Methods of Delivery Alaska Medicaid will pay for telemedicine services delivered in the following manner: n Interactive method: Provider and patient interact in real time using video/camera and/or dedicated audio conference equipment. n Store-and-forward method: The provider sends digital images, sounds, or previously recorded video to a consulting provider at a different location. The consulting provider reviews the information and reports back his or her analysis. n Self-monitoring method: The patient is monitored in his or her home via a telemedicine application, with the provider indirectly involved from another location. Exclusions Alaska Medicaid will not pay for n The use of telemedicine equipment and systems n Services delivered by telephone when not part of a dedicated audio conference system n Services delivered by facsimile n The following services provided by telemedicine application: ndirect entry midwife ndurable medical equipment (DME) nend-stage renal disease nhome and community-based waiver npersonal care assistant npharmacy nprivate duty nursing ntransportation and accommodation nvision (includes visual care, dispensing, or optician services) Alaska Medical Assistance Provider Billing Manual: Physician, ANP, PA > II. Professional Claims Management > Claim Submission > Special Billing Requirements > Billing for Telemedicine Services Submitting a claim for a telemedicine service is identical to the way a claim would be submitted for a face-to-face visit. Depending on the method of telemedicine used and the role of the provider in the consultation determines whether a modifier should be added to the procedure code. The role of the provider falls into three categories: n Referring Provider: Evaluates a patient, determines the need for a consultation, and arranges services of a consulting provider for the purpose of diagnosis and treatment. n Presenting Provider: Introduces a patient to the consulting provider during an interactive telemedicine session (may assist in the telemedicine consultation). n Consulting Provider: Evaluates the patient and/or medical data/images using telemedicine mode of delivery upon recommendation of the referring provider. 13

A consulting provider may send data he/she has received during a store-and-forward telemedicine consultation to another consulting provider (with equal or greater scope of practice as determined by his/her occupational license or level of expertise within their field of specialty). MALPRACTICE & LIABILITY Alaska Statutes > Title 8. Business and Professions > Chapter 64. Medicine > Article 3. Miscellaneous Provisions Prescription of drugs without physical examination (Alaska Stat. 08.64.364) (a) The board may not impose disciplinary sanctions on a physician for prescribing, dispensing, or administering a prescription drug to a person without conducting a physical examination if (1) the prescription drug is (A) not a controlled substance; or (B) a controlled substance and is prescribed, dispensed, or administered by a physician when an appropriate licensed health care provider is present with the patient to assist the physician with examination, diagnosis, and treatment; (2) the physician is located in this state and the physician or another licensed health care provider or physician in the physician s group practice is available to provide follow-up care; and (3) the person consents to sending a copy of all records of the encounter to the person s primary care provider if the prescribing physician is not the person s primary care provider, and the physician sends the records to the person s primary care provider. Legislative Alert! H.B. 278, 29th Leg., 2d Reg. Sess. (Alaska 2015) (introduced, January 27, 2016). Section 1. Alaska Stat. 08.64.364 is amended to read: (a) The board may not impose disciplinary sanctions on a physician for rendering a diagnosis, providing treatment, or prescribing, dispensing, or administering a prescription drug that is not a controlled substance to a person without conducting a physical examination if (1) the physician or another licensed health care provider or physician in the physician s group practice is available to provide follow-up care; and (2) the physician requests that the person consent to sending a copy of all records of the encounter to the person s primary care provider if the prescribing physician is not the person s primary care provider, and, if the patient consents, the physician sends the records to the person s primary care provider. Section 2. Alaska Stat. 08.64.364 is amended by adding a new subsection to read: (c) The board may not impose disciplinary sanctions on a physician for prescribing, dispensing, or administering a prescription drug that is a controlled substance if the requirements under (a) of this section are met and the physician prescribes, dispenses, or administers the controlled substance when an appropriate licensed health care provider is present with the patient to assist the physician with examination, diagnosis, and treatment. (As of October 2016, there are various pending bills related to this statute). 14

Alaska State Medical Board > Policies and Procedures > Section 6 Board Issued Guidelines > Telemedicine (Last revised November 7, 2014) There are two types of telemedicine practice allowed in the State of Alaska: 1) The long-standing Board-sanctioned practice by a physician who is not physically present with the patient when: n there is an established physician-patient relationship based on an in-person physical exam; or n there is an appropriate (licensed) health care provider on the other side of the transaction (with the patient) to assist the physician with their examination and diagnosis processes; or n the physician is providing on-call or cross-coverage emergency care and the physician has access to the patient records; or n the physician is caring for a patient in a community where there is no physician, physician assistant, nurse practitioner, nurse, or community health aid, to conduct a physician examination; or n the physician is a radiologist or pathologist and is only reading or interpreting films or samples. This type of practice does not require the physician to be located in the State of Alaska, but does require the physician to practice in accordance with all relevant laws and practice standards. 2) The practice of telemedicine authorized under Alaska Statute (AS) 08.64.364 (effective November 28, 2014) by a physician prescribing, dispensing, or administering a prescription drug without first conducted an in-person physical examination of the patient, if: n the prescription drug is not a controlled substance; n the physician is located in the State of Alaska and a licensed health care provider is available to provide follow-up care; and n the patient consents to sending, and the physician sends, a copy of the records to the patient s primary care provider. This type of practice does require the physician to be located in the State of Alaska, and does require the physician to practice in accordance with all relevant laws and practice standards, including compliance with n the American Medical Association (AMA) guiding principles for telemedicine practice (adopted June 2014); and n the Federation of State Medical Boards (FSMB) Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine (adopted April 2014). MISCELLANEOUS FREE-STANDING BIRTHING CENTERS Alaska Administrative Code > Title 7. Health and Social Services > Part 1. Administration > Chapter 12. Facilities and Local Units > Article 9. Free-Standing Birth Centers Administration (Alaska Admin. Code tit. 7, 12.405) (j) In addition to meeting the requirements of 7 AAC 12.660, the administrator shall maintain and secure for confidentiality a personnel record for each employee, including contract staff, that includes, as appropriate, evidence of current CPR and NRP certification as described in (b)(4)(b) of this section. The administrator shall also ensure that [ ] 15

(2) the birth center develops and implements policies and procedures for interaction with other agencies, institutions, and individuals for services to clients and newborns, including [ ] (C) obstetric, pediatric, or neonatal consultation services, including consultation through telemedicine; Definitions (Alaska Admin. Code tit. 7, 12.449) (22) telemedicine means the practice of health care delivery, evaluation, diagnosis, consultation, or treatment, using the transfer of medical data through audio, video, or data communications that are engaged in over two or more locations between providers who are physically separated from the patient or from each other; FRONTIER EXTENDED STAY CLINICS Alaska Administrative Code > Title 7. Health and Social Services > Part 1. Administration > Chapter 12. Facilities and Local Units > Article 10. Frontier Extended Stay Clinics Medical staff (Alaska Admin. Code tit. 7, 12.465) (d) A physician shall be on site for sufficient periods of time, at least once in every three-month period, except in extraordinary circumstances, to provide the medical direction, medical care services, consultation, and supervision described in this section. Any extraordinary circumstance must be documented in the clinic s records. A site visit by a physician is not required if no patients have been treated since the last time a physician made a site visit. The clinic must (1) ensure that, in addition to the site visits required by this subsection, a physician will be (A) available 24 hours a day through direct radio or telephone communication for consultation, assistance with medical emergencies, or patient referral; and (B) in contact with the clinic telephonically or through telemedicine at least once in every two-week period;[ ] Definitions (Alaska Admin. Code tit. 7, 12.490) (8) telemedicine means the practice of health care delivery, evaluation, diagnosis, consultation, or treatment, using the transfer of medical data through audio, visual, or data communications that are engaged in over two or more locations between providers who are physically separated from the patient or from each other. 16