GUIDANCE FOR TELEHEALTH SERVICES DURING THE COVID-19 PANDEMIC: MEDICAID REIMBURSEMENT AND BUPRENORPHINE PRESCRIBING

By Jessica Woodrow, Esq. & Carla Hogan, Esq.

Starting March 13, 2020, the New York State Department of Health (DOH) has allowed electronic/virtual telehealth services for Medicaid beneficiaries for the duration of the ongoing COVID-19 pandemic. Other New York state agencies have followed suit. Additionally, the Substance Abuse and Mental Health Services Administration and the Drug Enforcement Agency relaxed requirements relating to buprenorphine prescribing.

Medicaid Billing

Under recent DOH guidance, Medicaid now reimburses remotely conducted patient evaluations and management services for established patients when in-person visits are not medically recommended. Pursuant to Governor Andrew Cuomo’s Executive Order 202, properly documented telemedicine visits will be considered medically necessary for Medicaid reimbursement for the duration of the coronavirus shutdown, if such visits are clinically indicated.

Previous amendments to New York’s Insurance and Public Health Laws require that all services covered under a comprehensive health insurance policy or contract must also be covered when the service is delivered remotely for New York Medicaid Managed Care plans. The DOH is encouraging telemedicine to provide COVID-19 related services to Medicaid recipients. Medicaid will also cover additional services including no-copay COVID–19 testing, as well as physician, clinic, and emergency visits where the purpose of the visit is COVID–19 testing.

According to a May 2020 DOH guidance update, the POS code for providers billing Medicaid for telehealth services should, “reflect the location where the service would have been provided face-to-face,” i.e., the office where the provider typically conducts in-person patient visits.  In addition, the health care provider can bill for services delivered by telephone if unable to facilitate the audiovisual services typically referred to as telemedicine.

Similarly, the NYS Office of Mental Health, The New York Office of People with Developmental Disabilities and the NYS Office of Substance Abuse Services, have all relaxed their requirements pertaining to telehealth services, making it easier for practitioners to treat, even via telephone.

As of March 6, Medicare authorized payment for telehealth services, including those delivered in a patient’s residence.  Medicare will pay for visits from a wide array of providers, including physical and mental health services, the latter including reimbursement for licensed clinical social workers.

Buprenorphine Prescribing

With respect to buprenorphine prescribing, on March 31, SAMHSA and the Drug Enforcement Agency (DEA) released guidance providing flexibility to prescribe buprenorphine to new and existing patients with opioid use disorder remotely by otherwise authorized practitioners without requiring such practitioners to first conduct an examination of the patient in person; SAMHSA has preemptively exercised its authority to “exempt providers from the requirement to perform in-person physical evaluations under 42 CFR § 8.12(f)(2) for any patient who will be treated with buprenorphine if a program physician, primary care physician, or an authorized healthcare professional under the supervision of a program physician, determines that an adequate evaluation of the patient can be accomplished via telehealth.” However, SAMHSA’s separate guidance for patients treated with methadone still require an in-person medical evaluation.  Earlier guidance, however, does permit methadone patients whose doctors certify them as “stable in their recovery” to receive a larger supply of the medication to take home rather than having to attend clinic regularly, to avoid COVID-19 exposure.

Finally, all providers treating via telehealth should be reviewing their consent- to treat forms to ensure that telehealth is included.  With respect to the provision of mental health services, a specific telehealth consent form is recommended due to the inherent nature of the treatment.  If you would like your forms reviewed or updated, please contact Carla Hogan or Jessica Woodrow, listed below.

Carla E. Hogan is Of Counsel to the Firm and is an AV rated attorney with other 30 years’ experience providing employment and health law counseling to for profit and not for profit entities, regulated providers and licensed professionals.  She can be reached at chogan@weisszarett@gmail.com or 518-527-9981

Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law.She can be reached at jwoodrow@weisszarett.com or 516-627-7000

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

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