Several updates have made by the Oregon Health Authority (“OHA”) and the Health Evidence Review Commission (“HERC”) since this alert was first posted. The following is updated as of March 31, 2020.
On March 16, 2020, the Oregon Health Authority (“OHA”) issued a new temporary emergency rule revising OAR 410-130-0610 – OHA’s Medicaid telehealth reimbursement rule. The new rule is intended to broaden the use of telehealth services for Medicaid recipients and to increase reimbursement for certain telehealth services. OHA also adopted a modified Prioritized List of Health Services issued by the Health Evidence Review Commission (“HERC”) on March 13, 2020 (“Prioritized List”). The Prioritized List contains an updated Guideline Note A-5 and a new Statement of Intent 6. The Guideline Note, Statement of Intent, and temporary rules define the scope of telehealth services that are considered covered for Medicaid recipients.
The revised Guideline Note A-5 is intended to facilitate access to key services, including electronic, video, and telephone visits to enable providers to service patients without the patients risking disease transmission. It includes a fairly robust list of procedure codes that will be considered covered when providers are engaged in synchronous visits with both audio and video capability. In addition, HERC issued an amendment to the Guideline Note A-5 on March 23, 2020 stating that “[t]hese services can be provided by telephone when appropriate during the COVID-19 crisis. See CMS FAQ #2 and Oregon Health Plan COVID-19 page for up-to-date details and billing guidance for fee-for-service.” Permitted services include, for example, psychotherapy, End-State Renal Disease-related services, new and established patient visits, subsequent hospital care, subsequent nursing facility care, and certain behavioral health and care management codes. The note provides:
Telehealth (Synchronous audio/video visits)
Telehealth visits are defined as synchronous visits with both audio and video capability. The patient may be at home or in a health care setting. The originating site code Q3014 may only be used by appropriate health care sites. Codes eligible for telehealth services include 90785, 90791, 90792, 90832-90834, 90836, 90837-90840, 90846, 90847, 90951, 90952, 90954, 90955, 90957, 90958, 90960, 90961, 90963, 90964-90970, 96116, 96156-96171, 96160, 96161, 97802-4, 99201-99205, 99211-99215, 99231-99233, 99307-99310, 99354-99357, 99406-99407, 99495-99498, G0108-G0109, G0270, G0296, G0396, G0397, G0406-G0408, G0420, G0421, G0425-G0427, G0436-G0439, G0442-G0447, G0459, G0506, G0508, G0509, G0513, G0514, G2086-G2088.
Telehealth visits are covered for inpatient and outpatient services for new or established patients.
Telehealth consultations are covered for emergency and inpatient services.
Billing for telehealth visits requires the same level of documentation, medical necessity and coverage determinations as in-person visits.
This is a significant update because of the expanded number and type of procedural codes that qualify for telehealth visits and because it applies to both new and existing patients. The note continues to authorize certain codes (CPT 98966-98968, 99441-99443, 99421-99423, 98970-98972, G2012, G2061-G2063) that were previously available when a clinician had certain telephonic or electronic service visit with an established patient but also recognized that the requirement that the codes be used only for established patients would be waived during the Covid-19 crisis. The note also continues to recognize coverage for certain clinician-to-clinician consultations by telephone. According to HERC, the revisions to Guideline Note A-5 will enable access to telemedicine services going forward.
HERC’s new Statement of Intent 6 applies specifically during an outbreak or epidemic and provides:
During an outbreak or epidemic of an infectious disease, reducing administrative barriers (e.g. increasing reimbursement rates) for telephonic evaluation and management services (CPT 99441-99443) and assessment and management services (CPT 98966-98968) is appropriate to ensure access to care while avoiding and preventing unnecessary potential infectious exposure.
The referenced codes will permit reimbursement for certain Non-Face-to-Face Physician and Nonphysician Telephone Services. OHA’s temporary rule also specifies that during an outbreak or epidemic, OHA will provide coverage and reimbursement of patient-to-clinician telephonic and electronic services for established patients using the OHA’s maximum allowable rate-setting methodology. OAR 410-130-0610(4). On March 20, OHA issued a public notice stating that OHA intends to submit an expedited State Plan Amendment to the Centers for Medicare & Medicaid Services (“CMS”) asking CMS to approve an amendment retroactive to Oregon’s State Medicaid Plan allowing Oregon to increase reimbursement for telehealth services to rates that are comparable to in-person services.
The new temporary rule specifies requirements that must be met to obtain reimbursement for physical health telemedicine services including:
- Compliance with HIPAA and OHA’s Confidentiality and Privacy Rules and security protections for the patient in connection with the telemedicine communication and related records;
- Using technology in the telemedicine communication that is compliant with privacy and security standards in HIPAA and the Authority’s Privacy and Confidentiality Rules set forth in OAR 943 division 14;
- Ensuring policies and procedures are in place to prevent a breach in privacy or exposure of patient health information or records (whether oral or recorded in any form or medium) to unauthorized individuals;
- Complying with the relevant HERC guideline note for telehealth, teleconsultation, and electronic/telephonic services;
- Maintaining clinical and financial documentation related to telemedicine services as required in OAR 410-120-1360;
- Ensuring that the performing providers hold a current and valid license without restriction from a state licensing board where the provider is located and have authority to provide physical health telemedicine services for eligible Oregon Medicaid beneficiaries; and
- Compliance with correct coding standards using the most appropriate Current Procedural Terminology (CPT) or Healthcare Common Procedure Coding System (HCPCS) codes.
Note that two days after OHA issued its temporary rule, the Office of Civil Rights of the U.S. Department of Health and Human Services announced that it would exercise its enforcement discretion and waive any potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency. See our blog post discussing other changes at the federal level designed to bolster the accessibility of telehealth services. HERC promptly amended its Guideline Note A5 to state “[c]ertain requirements for encryption will not be enforced by federal authorities during this crisis. This means services like Facetime, Skype and Google Hangouts can be used for patient contact. Compliant platforms are of course preferred when available.” We would expect to see OHA amend its rule to align with this position in the near future. As this is an evolving area we will plan to update our post as new information becomes available.
 HERC issued an errata on March 23, 2020 removing “96150-96154” and replacing it with “96156-96171.”