Health Systems Rally for Data Sharing Rights with Tech Giants
In a notable legal development, as reported in an article by Fierce HealthCare, thirty prominent health systems and 17 state hospital associations have rallied behind the American Hospital Association’s (AHA) lawsuit against the United States Department of Health and Human Services (HHS). The lawsuit challenges an HHS guidance bulletin from December 2022 restricting their ability to share patient web data with online advertising giants like Google and Meta. Among the health systems joining the cause are some of the nation's largest, including AdventHealth in Florida, Christus Health in Texas, Cedars Sinai Medical Center in California, Johns Hopkins Health System in Maryland, and Jefferson University in Pennsylvania. They have filed amicus curiae briefs expressing their support for the AHA’s position.
These health systems contend that third-party technologies like Google Analytics, which are targeted by the HHS guidance, play a crucial role offering valuable insights into the behavior of visitors to their websites while maintaining user anonymity. This legal contention stems from the HHS guidance bulletin declaring that web traffic data to public-facing health system and hospital websites is protected under the Health Insurance Portability and Accountability Act (HIPAA). This bulletin essentially prohibited hospitals from sharing certain types of visitor information — such as email addresses, IP addresses, or geographic data — with marketing vendors like Google or Meta. The guidance prompted hospitals to overhaul their marketing strategies and sparked a series of class action lawsuits alleging violations of patient privacy laws.
Additionally, last summer, HHS and the Federal Trade Commission issued warning letters to 130 health systems and telehealth providers. These warnings highlighted the privacy risks associated with technologies like Meta Pixel and Google Analytics, which collect data for consumer-targeted marketing. In response to these developments, AHA filed a lawsuit against HHS in November, arguing that the guidance exceeded the department's authority. The association has also requested the federal district court overseeing the case to invalidate the HHS guidance. This legal battle underscores a growing tension between healthcare providers' need for digital marketing tools and the imperative to protect patient privacy. The outcome of this lawsuit could have significant implications for how health systems use technology to interact with and understand their patients while complying with privacy laws. For more information, read the AHA’s full lawsuit and Fierce HealthCare Article summarizing the additional organizations in support. CCHP will continue to provide updates as they become available. |
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Lawmakers Advocate for Permanent Expansion of Telehealth Services in Post-Pandemic Era
In a letter addressed to HHS Secretary Xavier Becerra, a bipartisan group of U.S. lawmakers is actively urging the Department of Health and Human Services (HHS) to collaborate with Congress to ensure the continued expansion of telehealth services, which have been significantly utilized since the pandemic. Led by Senator Brian Schatz (D-HI), the group stresses the importance of maintaining access to telehealth beyond the temporary regulatory relaxations introduced during the COVID-19 public health emergency. The lawmakers highlighted the steps Congress has already taken, such as passing the Consolidated Appropriations Act, 2023, which extends certain Medicare telehealth flexibilities until December 31, 2024. These include temporarily removing geographic limits, allowing payment for telehealth services at federally qualified health centers and rural health clinics, easing in-person requirements for telemental healthcare, and continuing the coverage of audio-only telehealth services.
In the letter, the legislators call for permanent telehealth policies, which would come to fruition with passage of the Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act, which would make permanent many of the telehealth expansions (as referenced in the preceding paragraph) in Medicare that occurred as a result of the COVID-19 emergency. The lawmakers urge HHS to assist in this endeavor by providing necessary resources, technical support, and stakeholder engagement to ensure successful implementation. The CONNECT Act is not the only piece of legislation currently in Congress that would address telehealth policy beyond 2024, as CCHP is currently tracking 36 federal bills that address Medicare reimbursement policy. The Expanded Telehealth Access Act (S 2880) is one example.
View CCHP’s federal pending legislation tracking webpage to stay up to date on all the telehealth related bills making their way through Congress. |
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Latest Policy Developments in CCHP’s Telehealth Policy Finder and Policy Trends Map
CCHP’s Policy Finder look-up tool and Policy Trend Maps were updated throughout the past two-months based on the latest information from our ongoing state telehealth policy tracking. The latest states to be updated include California, Connecticut, Delaware, Colorado, Georgia, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Virgin Islands, Wisconsin.
State Medicaid programs continue to adjust their telehealth policies to accommodate many of the telehealth flexibilities allowed during the COVID-19 emergency, including reimbursement for expanded services and an allowance for audio-only reimbursement for certain procedure codes. States also continue to join licensure compacts, and professional boards are adopting telehealth practice requirements quite frequently. Some highlights are noted below:
- California: Incorporated changes made by AB 1241 which revised Medi-Cal (CA Medicaid) requirements pertaining to healthcare providers needing to offer or facilitate in-person care when delivering services through live video and/or audio-only methods. The revision now includes language allowing providers to establish protocols to address this requirement, while not obligating the provider to schedule the appointment. A new bulletin on telehealth services was also issued by the Children’s Services Program. On the professional regulatory side, the cross-state licensing section was updated to include bills passed that made certain allowances for out-of-state marriage and family therapists, clinical social workers and professional clinical counselors to practice within California if certain conditions are met, as well as for out-of-state physicians with patients in California that have life-threating diseases or conditions. Additional changes were made in California; therefore, providers should carefully review California’s section of the policy finder for additional updates.
- Connecticut: Issued a message to providers in October 2023 announcing that moving forward, providers eligible for reimbursement for code S0199 (medication abortion) may perform this service via telemedicine only (synchronized audio-visual) under the CMAP Telehealth Policy.
- Colorado: The Department of Health Care Policy and Financing adopted a new rule authorizing electronic consultations (eConsults). It requires that the eConsults must be initiated by a primary care medical provider, and responded to by a specialty provider, through the Department's authorized eConsults Platform. A new rule was also adopted to establish practice requirements for licensed psychologists prescribing psychotropic medication for the treatment of mental health disorders.
- Delaware: Delaware’s Division of Medicaid and Medical Services updated their Practitioner Manual to add a new section dedicated to Telehealth Services Policies and Procedures to align with the state plan. The section contains new definitions and criteria for telehealth services and provides coverage for all modalities including audio-only, store-and-forward and remote patient monitoring under certain conditions.
- Massachusetts: MassHealth issued a new bulletin to clarify payment parity between services delivered via telehealth and those delivered in-person. The bulletin provides policies on the billing of facility claims for services rendered via telehealth as well as clarifies documentation requirements. It also clarifies that MassHealth will cover telehealth eligible services including audio only telehealth.
- Michigan: Michigan Medicaid released a bulletin effective December 1, 2023 which establishes coverage for interprofessional consultations (including eConsults), which are defined as a type of asynchronous telemedicine service in which the beneficiary’s Medicaid-enrolled treating provider requests the opinion and/or treatment advice of a Medicaid enrolled consulting provider with the specialty expertise to assist in the diagnosis and/or management of the beneficiary’s condition without face-to-face contact with the consulting provider. Workers’ Compensation administrative code was also modified to allow a health care professional to bill for telemedicine services.
- Nebraska: Nebraska Medicaid issued a new provider bulletin providing guidance on telehealth. The bulletin specifies service codes that are no longer available through telehealth after Dec. 31, 2023, codes that will continue to be covered through telehealth without an end date and new allowances for telehealth starting Jan. 1, 2024. New allowances include codes related to physical, occupational and speech therapy and drug, alcohol and behavioral health services.
- New Hampshire: Adopted new regulations that implement reimbursement for remote patient monitoring and store-and-forward (as required by previously passed legislation). The regulations specify that payment for store and forward and remote patient monitoring shall only be available as funding and resources within the current state fiscal year are available. The new regulations also require medical providers to ensure the patient’s informed consent to use telehealth is obtained and to advise members of any relevant privacy considerations. Additionally, Senate Bill 126 was passed which encourages the office of professional licensure and certification to seek reciprocity agreements with states that have substantially equivalent licensure requirements to New Hampshire for purposes of health care professionals treating patients in custody of the department of corrections.
- Oklahoma: A new administrative code section related to audio-only health service delivery was added requiring that health care services delivered via audio-only telecommunications must be compensable by OHCA in order to be reimbursed and that it is reimbursed based on the fee for service fee schedule, including for FQHCs and RHCs. The administrative code outlines requirements, including the member's right to withdraw at any time and the necessity for either the provider or the member to be located at the freestanding clinic providing services.
- Oregon: Oregon’s Medical Assistance Program revised their regulations to, among other changes, add a requirement into their policies for providers who are unable to offer in-person services to offer local provider options to a client or member when an in person visit is clinically indicated or when the client or member requests it.
- Pennsylvania: In a recent Medical Assistance Bulletin from Pennsylvania Department of Human Services, the Department announced coverage and payment for interprofessional consultation services. However, it requires technology used must be real-time interactive telecommunications technology. Asynchronous communications and applications, such as store and forward, may be utilized only as part of the synchronous consultation, but by themselves do not meet the requirements for interprofessional consultations.
- South Dakota: South Dakota Medicaid updated their billing and policy manual to add permanent coverage of remote patient monitoring of physiologic functions when medically necessary for recipients with acute or chronic conditions when ordered and billed by providers who are eligible to bill Medicaid for evaluation and management codes.
- Texas: Texas modified their Telecommunications Services Handbook to specify that a distant site provider includes an FQHC and RHC (in addition to physician assistants, nurse practitioners, certified nurse midwives, and certified nurse specialist who were previously listed) who is supervised by and has delegated authority from a licensed Texas physician, who uses telemedicine to provide health-care services to a client in Texas. The manual also includes clarification on how a FQHC and RHC would collect the facility fee, Q3014. It requires RHCs and FQHCs to get a signed letter from the client’s treating health care provider at the FQHC documenting that the client suffered an injury requiring additional diagnosis or treatment by a distant site provider. This will suffice to document the client’s medical need for purposes of receiving additional facility fee payments for the same client on the same date of service. The Texas Medicaid Behavioral Health and Case Management Services Handbook was also updated to require that audio only mental health services be conducted only for existing clinical relationships and defines that as needing an in person or synchronous telehealth visit within 12 months, though it can be waived in certain circumstances. Finally, Texas updated their administrative code to specify that teledentistry is covered under workers’ compensation.
- Utah: Utah Medicaid updated their general information provider manual to specify certain conditions that are covered by audio-only synchronous care, including behavioral health, speech and hearing and nutrition services among others. The manual also now stipulates that a non-resident provider may report telehealth services given to an in-state Medicaid member when licensing requirements are met, the provider is enrolled with Utah Medicaid and certain additional telehealth policies are followed.
- Vermont: In a Banner Notice, the Department of Vermont Health Access announced that effective Jan. 1, 2024 Vermont Medicaid will allow modifier 93 for audio-only services and no longer allow the use of the V3 modifier. A list of audio-only covered codes can be found on the Department’s website.
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California Unveils Complimentary Online Behavioral Health Services for Kids and Families
In a recent News Release, the California Department of Health Care Services (DHCS) has introduced the Behavioral Health Virtual Services Platform, encompassing two groundbreaking applications – Soluna and Brightlife Kids – designed to offer free behavioral health services for families with children, teens, and young adults aged 0-25. This initiative, a key part of Governor Gavin Newsom’s Master Plan for Kids’ Mental Health and the Children and Youth Behavioral Health Initiative (CYBHI), addresses the escalating mental health crisis among youth. The apps provide access to professional help, regardless of income, insurance, or immigration status, in response to the increasing rates of anxiety, depression, and limited availability of mental health providers. Soluna targets teens and young adults (13-25 years), while Brightlife Kids focuses on children (0-12 years) and their caregivers. These apps offer a suite of services, including free coaching, educational content, assessments, care navigation, and peer communities, alongside robust safety protocols. This initiative aims to expand accessibility to mental health resources, bridging the gap in existing health care systems and ensuring the safety and well-being of California's youth. To learn more, read the full DHCS News Release, and visit the CalHOPE program website to access the apps. |
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FCC Announces Gradual Conclusion of Affordable Connectivity Program
The Federal Communications Commission (FCC) has announced the beginning of the phase-out process for the Affordable Connectivity Program (ACP), a significant development affecting over 22 million low-income American households. FCC Chair Jessica Rosenworcel informed lawmakers of this decision in a late November 2023 hearing (and reported in a Politico article), citing the imminent depletion of the program's funding, expected this spring. The winding down of the Affordable Connectivity Program could significantly impact low-income households' access to telehealth services, potentially widening the healthcare gap for those who have come to rely on digital medical consultations.
Originally introduced during the COVID-19 pandemic and later integrated into the Infrastructure Investment and Jobs Act which passed in November 2021, the ACP has been instrumental in assisting families with their monthly internet bills. However, the program was never furnished with a permanent funding mechanism. Despite the White House's plea for an additional $6 billion to sustain the program through the year's end, the future of this funding remains uncertain amidst ongoing congressional negotiations. Two federal bills (HR 6929 and S 3565) were introduced in January that would extend the program, though it’s unclear if either bill will successfully become law.
As the FCC gears up for this transition, Chair Rosenworcel outlined the steps to be taken: telecom providers will receive guidance on notifying current participants about the program's termination, a date will be set to halt new enrollments, and a formal end date will be determined. Although the FCC hopes to extend the funding through April, the exact duration remains speculative. Read the full FCC press release on their wind-down efforts for all the details. Stay tuned to future CCHP newsletters for updates. |
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ONC Final Rule Enhances Health IT Interoperability and Certification
In a decisive step towards advancing healthcare technology, the Office of the National Coordinator for Health Information Technology (ONC) has finalized a new rule that is set to transform the landscape of Health IT interoperability and certification. The rule, formally titled "Health Data, Technology, and Interoperability: Certification Program Updates, Algorithm Transparency, and Information Sharing," provides updates to the ONC Health IT Certification Program (Certification Program). It is designed to implement the Electronic Health Record (EHR) Reporting Program provision of the 21st Century Cures Act. This rule adoption is significant as it introduces several new conditions for health IT developers under the Certification Program, aiming to enhance the overall quality and efficiency of health IT systems.
One of the key elements of this rule is the introduction of the "Insights Condition Reporting Measures and Metrics," which mandates certified health IT developers to report specific metrics. The purpose of these metrics is to provide the ONC with a deeper understanding of how organizations utilize certified health IT systems, and includes collection of data to measure things such as individual’s access to electronic health information, clinical care information exchange and adoption of certain standards set by the ONC. Another important update is the requirement for certified health IT developers to transition to the United States Core Data for Interoperability (USCDI) Version 3 (v3) standard by January 1, 2026. The USCDI v3 is a more advanced standard that includes updates focused on promoting more accurate and complete patient data. These enhancements are expected to foster equity, reduce disparities, and support public health interoperability, ensuring that the health IT systems are more inclusive and effective for diverse patient populations. Additionally, the rule requires clinical users to have access to a baseline set of information about the algorithms used in their decision-making processes. The final rule also updates several technical standards in the ONC Health IT Certification Program. For all the details, read the full text of the final rule. |
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Unlocking the Potential of Remote Patient Monitoring: Insights from the Bipartisan Policy Center's Report
The Bipartisan Policy Center recently undertook an extensive effort to develop evidence based federal policy recommendations for remote patient monitoring, resulting in a report titled "The Future of Remote Patient Monitoring”. Their analysis highlights the coverage of remote monitoring by Medicare, most state Medicaid programs, and many private health insurance plans, encompassing both remote physiologic monitoring (RPM) and remote therapeutic monitoring (RTM). RPM involves tracking physiologic data like weight, blood glucose, and blood pressure, while RTM focuses on patients' self-reported non-physiologic data such as pain levels and medication adherence. According to the report, despite the growing adoption of remote monitoring, questions persist about its optimal use, duration, and target patient groups, prompting the need for evidence-based policy recommendations to ensure its appropriate utilization, equitable access, and data security and privacy standards. Policy recommendations were made around three key points, including (1) ensuring appropriate service coverage, (2) improving equity, and (3) ensuring data security and privacy. Examples of recommendations include:
- CMS should to collaborate closely with medical specialty societies in the evaluation of available evidence and the development of suitable coverage mechanisms that will effectively steer the ideal utilization of remote monitoring.
- Congress should issue a directive to the Food and Drug Administration (FDA), instructing them to establish a regulation that clearly outlines the requirement for remote monitoring device labels to incorporate performance characteristics that facilitate the safe and efficient utilization of these devices.
- The HHS Office of Civil Rights should undertake an evaluation to determine whether current privacy policies sufficiently safeguard personal health information collected, stored, and transmitted via remote monitoring.
For more recommendations and to learn more about the evidence the Bipartisan Policy Center gathered and analyzed, read the full report. |
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Audio-Only Telehealth Enhances Quality of Life for Chronic Disease Patient
A recent study published in JAMA highlights the positive impact of audio-only telehealth on the quality of life for patients with chronic conditions such as chronic obstructive pulmonary disease (COPD), heart failure, and interstitial lung disease (ILD). These patients often suffer from persistent symptoms like breathlessness and pain, affecting their overall well-being. With limited access to palliative care specialists in the United States, researchers introduced the Advancing Symptom Alleviation with Palliative Treatment (ADAPT) intervention, involving a registered nurse and social worker providing structured counseling via phone calls. The results showed a significant improvement in quality of life, disease-specific health status, and emotional well-being for patients in the intervention group compared to those receiving usual care. This study demonstrates the potential of telehealth to expand the reach of palliative care services and enhance the overall healthcare experience for patients with chronic conditions. For all the study details, read the full text of the article [subscription required]. |
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Dive into Telehealth Policy with CCHP Executive Director, Mei Kwong! |
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We are excited to announce the release of the Center for Connected Health Policy (CCHP)’s first informational video of 2024, featuring executive director, Mei Kwong. In this presentation, Mei delves into the intricate landscape of US telehealth policy, offering insights into the latest developments shaping the future of healthcare delivery. Topics addressed in the video include:
- An overview of the federal and state telehealth policy landscape
- The current status of certain policies, such as those related to Medicare and prescribing controlled substances
- Items to monitor over the coming year, such as Artificial Intelligence (AI) and cross-state licensure
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FEDERAL LEGISLATION
Telemental Health Care Access of 2024
S 3651 (Sen. Cassidy R-LA) - Eliminates the permanent requirement that for reimbursement under Medicare for telehealth delivered services, there must be an in-person visit furnished within six months of an initial telehealth visit, and during subsequent periods as determined by the Secretary of Health and Human Services. Note that implementation of this requirement is currently waived due to the COVID-19 pandemic until Jan. 1, 2025. In the event this bill passes, the requirement would never go into effect. (Status: 1/24/24 – Introduced in Senate)
Medicare Telehealth Privacy Act of 2023
HR 6364 (Rep. Balderson R-OH) – Requires that in the case of a physician or practitioner who elects to furnish telehealth services through Medicare at a distant site that is their home, if the Secretary requires the physician or practitioner to include their home address on any enrollment form (or requires such physician or practitioner to bill for such services using such address), the Secretary may not make that address available to the public in any manner. (Status: 12/6/23 – Ordered to be reported (amended by Yeas and Nays)).
Expanding Remote Monitoring Access Act
HR 5394 (Rep. Balderson R-OH) - Requires that the Secretary of Health and Human Services ensure that remote monitoring services are payable for a minimum of two days for data collection over a 30-day period, regardless of whether the individual receiving such services has been diagnosed with, or is suspected of having, COVID-19. The requirements would last two years after the date of enactment of the bill. HR 5394 also requires a report to Congress that summarizes and analyzes remote monitoring services for the two-year period the bill is in effect. See bill for details regarding the report. (Status: 9/23/23 – Introduced in House and referred to Subcommittee on Health)
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STATE LEGISLATION
ARIZONA
SB 1043 – Includes a new definition for telehealth that applies to licensed genetic counselors in the state. The definition includes interactive use of audio, video or other electronic media, including asynchronous store-and-forward technologies and remote patient monitoring technologies, for the practice of health care, assessment, diagnosis, consultation or treatment and the transfer of medical data. (Status: 2/1/24 – Transmitted to House)
KENTUCKY
HB 56 - Enacts the Social Work Licensure compact in Kentucky, which would grant multistate licensure privilege to practice for out-of-state regulated social workers that meet certain criteria through the Compact. (Status: 2/1/24 – 2nd reading, and referred to Rules Committee)
MISSOURI
HB 1907 - Adds audio-only to the definition of telehealth in the Medicaid program and stipulates that telehealth services shall not be limited only to services delivered via select third-party corporate platforms. (Status: 1/30/24 – Voted Do Pass in the House)
NEW JERSEY
S 914 - Revises requirements for health insurers to cover telemedicine and telehealth, and requires telemedicine systems to include accessible communication features for individuals with disabilities. The bill also prohibits plans and the Medicaid program from imposing “place of service” requirements on providers and includes language allowing health care providers to provide services via telehealth regardless of whether they are located in New Jersey, provided they are otherwise licensed in New Jersey. (Status: 1/9/24 – Introduced in Senate and referred to Senate Health, Human Services and Senior Citizens Committee)
SOUTH CAROLINA
H 4159 - This bill would, among other things, add a definition of telehealth to statute (in addition to telemedicine which they already have). It also provides requirements for health care professionals that establish and/or maintain a physician-patient relationship solely via telemedicine, including prohibiting the prescription of Schedule II and III narcotic drugs, although certain exceptions apply. It also provides licensing exceptions for out-of-state providers that have established a physician patient relationship in another state for specialty care and treatment under certain circumstances. (Status: 1/31/24 – Concurred in Senate amendment and enrolled)
TENNESSEE
SB 1881 - Removes from the definition of "provider-based telemedicine" the requirement that the healthcare service provider or the provider's practice group or healthcare system have an established provider-patient relationship that is documented by an in-person encounter within 16 months prior to the interactive visit. (Status: 1/31/24 – Filed for introduction)
UTAH
HB 267 - Requires that starting Jan. 1, 2025, if a network provider delivered health care services at an in-person location in the state, a health benefit plan must reimburse telemedicine services that are delivered by that network provider at a rate that is contracted with the network provider for the same health care services that are delivered in person; or, for services other than for treatment of mental health conditions, at least 90% of the rate that is paid to the network provider for the same services that are delivered in-person. This would not apply for telemedicine services that are specifically included as part of a contracted arrangement that shares risk or bundles payment. (Status: 1/31/24 – In House Business and Labor Committee, Not considered)
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CCHP knows that telehealth policy can be a complicated subject and from time to time questions about policies related to your specific situation may arise. You’re in luck…We’re here for you! Just submit your question via our easy to use contact us form, or send an email to info@cchpca.org
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