How Telehealth Regulations Have Changed in North Carolina, Virginia and South Carolina During the COVID-19 Emergency

Prior to the COVID-19 public health emergency, telehealth services were generally restricted to routine visits for patients residing in rural areas. This was in part to prevent health care fraud and abuse. For example, the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 required a patient to receive an in-person medical evaluation before a controlled substance could be prescribed through telemedicine. Although laws to combat the opioid crisis eased some restrictions on telemedicine prescriptions, the health care crisis posed by the COVID-19 outbreak has further lessened restrictions on telemedicine prescriptions as well as the general provision of medical care through telehealth.

On March 17, 2020, under the authority granted to it by the Coronavirus Preparedness and Response Supplemental Appropriations Act, the Centers for Medicare and Medicaid Services (CMS) announced the expansion of telehealth benefits for Medicare beneficiaries. During the duration of the COVID-19 Public Health Emergency, telehealth services are allowed to be provided to Medicare beneficiaries in all settings (not just a doctor’s office or hospital) and through a range of health care providers, such as nurse practitioners, clinical psychologists and licensed social workers. Telehealth services will be reimbursed at the same rate as in-person services. The Office of Inspector General is allowing health care providers to reduce or waive cost-sharing, such as coinsurance and deductibles, for telehealth visits paid by federal healthcare programs which often accompany these services. To the extent certain telehealth services require that the patient have a prior established relationship with a practitioner, the Department of Health and Human Services announced it will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.

State Medicaid programs are responding in turn. As of March 20, 2020, Medicaid patients in North Carolina are no longer required to have an in-person exam prior to receiving telehealth services. However, when establishing a new relationship with a patient through telehealth, the provider must meet the prevailing standard of care and complete all appropriate exam requirements. Restrictions on the location of the provider and patient have also been lifted, and telehealth services (including telepsychiatry) are able to be provided through smart phones, tablets and computers. New CPT codes for billing for online digital evaluation and management of patients were added by North Carolina Medicaid on March 23, 2020. Billing for these newly allowed services is retroactive to dates of service beginning March 10, 2020.

The Virginia Department of Medical Assistance Services (DMAS), Virginia’s state Medicaid agency, released a memo to providers on March 19, 2020 that included expanded telehealth coverage and flexibility in the delivery of care through telehealth. The memo stated that DMAS would reimburse for Medicaid covered services delivered through telehealth so long as the provider assures the same rights to confidentiality as is given in face-to -face care and the provider obtains informed consent from the patient to provide care via telehealth. DMAS waived the existing requirement that telehealth services must be done in real-time via a platform with audio and visual connections, thus allowing audio only care or care provided via the telephone. DMAS also waived the requirement that staff must be with the patient at the originating site and also allowed the patient and provider to be at home when care is delivered. Until further notice, Medicaid is not requiring the provider to bill using telehealth Codes only but is allowing the use of CPT or HCPCS codes when billing. DMAS is asking providers to update their billing as soon as possible and use appropriate billing modifiers when providing care via telehealth. Finally, DMAS is allowing the delivery of behavioral health services via telehealth including service needs assessments and addiction, recovery and treatment services for opioid use disorders and outpatient psychiatric services. The Memo issued March 19, 2020 is one of many memos that DMAS has stated that it will be releasing. Future memos will address flexibility for remote patient monitoring and provider-to-provider consultation via telehealth.

South Carolina’s expansion of telehealth services to Medicaid patients is more limited than North Carolina’s or Virginia’s. For example, evaluation and management encounters may only be rendered by a physician, nurse practitioner or physician assistant and are only allowable when provided to an established patient. However, South Carolina expanded the provision of services to three encounters every 30 days, and services may be provided regardless of the Medicaid member’s location. Beginning April 1, 2020, South Carolina will begin accepting claims for telehealth services provided on and after March 15, 2020.

As the COVID-19 outbreak ebbs, providers should keep abreast of the regulations governing telehealth services. CMS and most states have not set a date upon which modifications to the telehealth regulations will sunset. The ability to provide medical services broadly through telehealth may be the new normal.

Please note: This alert contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel. 

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