Medicare Telehealth Parity Act of 2017 And Other Proposed Legislation Seeks to Expand Coverage of Telehealth Services Under the Medicare Program

By Seth A. Nadel, Esq., Weiss Zarett Brofman Sonnenklar & Levy, P.C.

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Telehealth, also referred to as telemedicine, describes the integration of remote information and communications technology into the provision of medical services. The federal Health Resources and Services Administration (“HRSA”) defines telehealth as “[t]he use of electronic information and telecommunications technologies to support long-distance clinical health care, patient and professional health-related education, public health and health administration.” Some individual states have their own state-law distinct definitions of telehealth, but the theme remains consistent.

Common utilizations of telehealth technology include the use of live, two-way video communications between providers and patients, the transmission of electronic health records through secure HIPAA-compliant communications, remote patient monitoring, and the use of mobile communications devices (such as cell phones or tablets) to support both individual health services and public health initiatives. These methods, among other benefits, can substantially aid in delivering medical services to rural areas where provider presence is lacking, and can inform large groups of people when a public health crisis, such as a disease outbreak, poses imminent risks.

Despite the obvious benefits of telehealth technology, Medicare coverage of telemedicine services is currently limited to only those patients in qualifying rural areas, accessing such services from an approved “originating site,” such as a hospital or clinic, and only from certain types of providers. Nonetheless, in 2016, the Centers for Medicare and Medicaid Services (“CMS”) reported that there had been a 28% increase in payments for telehealth services under Medicare, encompassing over $22 million for nearly 500,000 claims.

A recently-formed bipartisan Congressional Telehealth Caucus is attempting to widen the availability of telehealth services under Medicare through the Medicare Telehealth Parity Act of 2017 (the “Act”). The Act seeks to expand telehealth reimbursement in three phases. The first phase expands the definition of “originating sites” to include all federally qualified health centers and rural clinics in areas with less than 50,000 people, as well as expanding the list of eligible providers to include respiratory therapy, audiology, and speech language therapy, among others.

The second phase would further expand the definition of originating sites to include a home telehealth site, and increase the population threshold of eligible areas to those with up to 100,000 people. The third phase would finally expand the eligible areas to those with populations over 100,000, and would authorize CMS to develop and implement new payment protocols specifically for telehealth services.

Additionally, the Act is not the only current pending or proposed legislation which could expand telehealth available. The Chronic Kidney Disease Improvement in Research and Treatment Act of 2017 (“CKDIRT”) would allow the treatment of kidney patients in their homes, and the Helping Expand Access to Rural Telehealth Act (“HEART Act”) would remove barriers to telehealth services in rural areas and expand the list of conditions eligible for treatment by telemedicine. Meanwhile, the Creating High-Quality Results and Outcomes Necessary to Improve Chronic Care Act of 2017 (“CHRONIC Act”) seeks to shift chronic disease managements services and care coordination to the patient’s home, in order to increase convenience and keep down costs.

It should be noted, however, that practitioners need not wait on the passage of federal legislation in order to request the ability to provide certain telehealth services. Any party, including an individual physician, medical society, or hospital, may send a request to CMS requesting that they add service codes to the current list of covered services under Medicare. Still, it is up to CMS as to whether they will add such codes, and then only within the bounds of their statutory authority to do so.[i]

Although similar legislation to the Act, introduced last year, ultimately failed to advance, the steady proliferation of telehealth services and the technology to support such services ensures that this issue will not be going away any time soon. As state and federal legislation increasingly embraces telemedicine, it will doubtlessly provide a benefit to both providers and patients, as well as the government and taxpayers who will benefit from the increased efficiency and decreased costs of providing such services.

Telehealth in New York

New York Public Health Law Article 29-G addresses “Telehealth Delivery of Services.” For the purposes of the statute, telehealth is defined as “the use of electronic information and communication technologies by telehealth providers to deliver health care services, which shall include the assessment, diagnosis, consultation, treatment, education, care management and/or self-management of a patient.”

Telemedicine, meanwhile, is distinctly defined as “the use of synchronous, two-way electronic audio visual communications to deliver clinical health care services, which shall include the assessment, diagnosis, and treatment of a patient, while such patient is at the originating site and a telehealth provider is at a distant site.” As with federal law, New York law limits the types of providers and originating sites which can be used in telemedicine.

In contrast to federal law, New York State has already passed its own telehealth parity law. The new law mandates coverage parity, meaning that commercial insurers cannot refuse to cover a particular service on the basis that it is being delivered via telehealth, as opposed to in-person. Similarly, the law also addresses payment parity, meaning that an insurance company cannot reimburse the provider at a lower rate based solely on the fact that a service was rendered via telehealth.

With respect to New York Medicaid, a recent expansion has broadened coverage of telemedicine services to include more types of practitioners (such as dentists, psychologists, and social workers), and more distant and originating sites (such as doctor’s offices). Reimbursement for telehealth services under Medicaid, however, is still prospectively limited by its definitions of distant and originating sites, as well as covered practitioners. This is in contrast to private insurers, who are free to offer coverage beyond the minimum required by law and define what is reimbursable to include more sites and more services. Regardless of current Medicaid restrictions, as the field evolves and federal law mandates further coverage of telemedicine, state law will likewise evolve and will undoubtedly lead to future expansions.

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


[i] For more information from CMS concerning telemedicine services, including originating sites, eligible services and current billing codes, please visit