Change of Law: Hospital Action Required
|Hospital Chief Executive Officers, Chief Financial Officers, Chief Medical Officers, Legal Counsel, and Government Affairs Staff
|David Streeter, Policy Director- Clinical and Data
DavidS@wsha.org | (206) 216-2508
|Audio-Only and Other Telemedicine Law Changes to Take Effect
The purpose of this bulletin is to inform hospitals of important Washington state law changes concerning telemedicine. This bulletin summarizes three new laws that were enacted in 2021 by the Washington State Legislature. The three new laws are:
- Audio-Only Telemedicine: ESHB 1196
ESHB 1196 makes audio-only telemedicine a covered and reimbursable telemedicine care modality effective July 25, 2021. ESHB 1196 requires reimbursement for audio-only telemedicine to be paid at “the same amount of compensation the carrier would pay the provider if the health care service was provided in person by the provider.” Additionally, hospitals will be able to grant privileges to physicians working at distant site hospitals for audio-only telemedicine.
- Allow Cross-State Physician to Physician Consultations Through Telemedicine: SSB 5423
SSB 5423 codifies the current practice of physicians and osteopathic physicians conducting consultations with colleagues outside of Washington state into Washington law, effective July 25, 2021.
- Medical Assistant Supervision: HB 1378
HB 1378 allows medical assistants (MA) to receive supervision through interactive audio-visual communication during a telemedicine visit, as of April 14, 2021.
WSHA strongly supported ESHB 1196 and is pleased audio-only telemedicine will become a covered and reimbursable service in Washington state. Telemedicine in audio-visual and audio-only modalities are important tools for patients to access care across the state. ESHB 1196 was a top priority in WSHA’s 2021 legislative agenda. WSHA’s Telemedicine Workgroup of subject matter experts from our hospital members played a key role in the successful outcome of the bill. WSHA members also advocated for the bill during legislative committee hearings and WSHA’s Virtual Advocacy Days.
- Review this bulletin to understand the changes to Washington state’s telemedicine laws.
- Educate hospital billing departments about the billing and payment parity requirements for audio-only telemedicine.
- Ensure medical staff are aware of the allowance for audio-only telemedicine, changes concerning distant site physician privileging, cross-state physician consults and MA supervision.
The new audio-only telemedicine coverage and reimbursement provisions apply to commercial health insurance plans, Behavioral Health Administrative Service Organization (BHASO) plans, Medicaid Managed Care Organization (MCO) plans, Public Employee Benefit Board (PEBB) plans, and School Employee Benefit Board (SEBB) plans.
Hospital Privileging for Audio-Only Telemedicine
The audio-only telemedicine privileging provisions apply to acute care hospitals licensed and regulated under chapter 70.41 RCW.
Medical Assistant Supervision: HB 1378
This change applies to medical assistants (MA) licensed under chapter 18.360 RCW and their supervising health care practitioner.
The COVID-19 pandemic created a significant increase in the number of patients receiving medical care through telemedicine. Many hospitals and health systems quickly implemented remote care programs to limit the spread of COVID-19. The rapid expansion of telemedicine was bolstered by a series of orders issued by Governor Jay Inslee and Insurance Commissioner Mike Kreidler. Specifically, their orders waived certain laws and implemented Washington state’s payment parity law ahead of schedule. The increase in telemedicine use illustrated the need for the Washington state legislature to pass new laws that expand access to remote care and adjust existing statutes.
ESHB 1196: Audio-Only Telemedicine
Washington state’s current statutory definition of “telemedicine” is limited to audio-visual services and specifically excludes audio-only services. This means that health insurers only cover and pay for services delivered through audio-visual telemedicine. The narrow definition requires patients to have sufficient internet access and an appropriate electronic device to access telemedicine services. However, the COVID-19 pandemic prompted the Insurance Commissioner to waive the audio-only exclusion temporarily through Emergency Order 20-02. The waiver required payers to cover and reimburse audio-only telemedicine services. This allowed patients unable to participate in an audio-visual telemedicine visit to receive remote care over the phone.
ESHB 1196 makes the temporary audio-only policy permanent by adding the audio-only modality to Washington state’s telemedicine statutes in RCW 41.05.700, RCW 48.43.735, RCW 71.24.335, and RCW 74.09.325, effective July 25, 2021. The bill does this by amending the statutory definition of “telemedicine” in all four sections to state:
“Telemedicine” means the delivery of health care services through the use of interactive audio and video technology, permitting real-time communication between the patient at the originating site and the provider, for the purpose of diagnosis, consultation, or treatment. For purposes of this section only, “telemedicine” includes audio-only telemedicine, but does not include facsimile or email.
ESHB 1196 builds on the expanded definition of telemedicine and defines “audio-only telemedicine” in RCW 41.05.700, RCW 48.43.735, RCW 71.24.335, and RCW 74.09.325, as:
“Audio-only telemedicine” means the delivery of health care services through the use of audio-only technology, permitting real-time communication between the patient at the originating site and the provider, for the purpose of diagnosis, consultation, or treatment.”
The “audio-only telemedicine” definition in all four sections excludes “the use of facsimile or email” and “the delivery of health care services that are customarily delivered by audio-only technology and customarily not billed as separate services by the provider, such as the sharing of laboratory results.”
Payment Parity Provision
The expanded “telemedicine” definition adds audio-only telemedicine to the state’s telemedicine payment parity requirements. This means that commercial health insurance plans, BHASO plans, MCO plans, PEBB plans, and SEBB plans must “reimburse a provider for a health care service provided to a covered person through telemedicine the same amount of compensation the carrier would pay the provider if the health care service was provided in person by the provider.”
Rural Health Clinics
ESHB 1196 requires MCOs to reimburse rural health clinics for audio-only telemedicine at the rural health clinic encounter rate.
Hospitals as Originating Sites
ESHB 1196 prohibits a hospital from charging payers a facility fee if the hospital serves as the originating site for audio-only telemedicine.
If a telemedicine provider intends to bill a patient or their insurance for audio-only telemedicine services, ESHB 1196 requires telemedicine providers to obtain patient consent for the billing in advance of the service being delivered. The bill does not contain specific language for providers to use when seeking consent. If either the Office of the Insurance Commissioner (OIC) or the Health Care Authority (HCA) believe that a provider repeatedly violates the consent requirement, the agencies are authorized to “submit information to the appropriate disciplining authority, as defined in RCW 18.130.020, for action.” ESHB 1196 adds the consent requirement to the Uniform Disciplinary Act in RCW 18.130.180, which mandates the appropriate boards and commissions to take disciplinary action against providers who violate the consent requirement.
Beginning January 1, 2023, patients and providers must have an established relationship before using audio-only telemedicine. ESHB 1196 defines “established relationship”:
“Established relationship” means the covered person has had at least one in-person appointment within the past year with the provider providing audio-only telemedicine or with a provider employed at the same clinic as the provider providing audio-only telemedicine or the covered person was referred to the provider providing audio-only telemedicine by another provider who has had at least one in-person appointment with the covered person within the past year and has provided relevant medical information to the provider providing audio-only telemedicine.
Please see the Next Steps section for more information about the “established relationship” clause’s implementation.
Distant Site Physician Privileging for Audio-Only Telemedicine
Hospitals currently grant privileges to physicians working at distant sites to serve patients through telemedicine at their facilities. However, the current definition of “telemedicine” in RCW 70.41.020 excludes audio-only services. This prevents distant site physicians from serving patients located at other hospitals. Section 3 in ESHB 1196 removes the audio-only exclusion, which means that originating site hospitals will be able to grant privileges to physicians at distant sites for audio-only telemedicine services beginning July 25, 2021. This change will remove a key barrier for providing care to patients located at one hospital who need to be treated by a physician located at a different hospital.
SSB 5423– Cross-State Physician to Physician Consultations Through Telemedicine
Washington state’s current law is silent regarding licensed physicians in Washington consulting with their peers in other states who are not licensed in Washington through telemedicine. The Washington Medical Commission (WMC) issued a policy statement in 2018 (POL2018-01) that permits licensed physicians in Washington to consult with their peers in other states regardless of their peer’s licensure status in Washington state. SSB 5423 adopts the WMC policy and codifies it into law. The bill adds language in RCW 18.71.030 and RCW 18.57.040 stating that Washington law does not prohibit “The consultation through telemedicine or other means by a practitioner, licensed by another state or territory in which he or she resides, with a practitioner licensed in this state who has responsibility for the diagnosis and treatment of the patient within this state.” This means licensed physicians and osteopathic physicians may continue to consult with out-of-state peers regardless of their licensure status in Washington. This clarification to Washington law takes effect July 25, 2021.
HB 1378– Medical Assistant Supervision During Telemedicine Visits
Washington law requires medical assistants to be supervised by a “health care practitioner” as defined in RCW 18.360.010. Prior to HB 1378’s passage, the “supervision” definition only contemplated in-person care. This created ambiguity for MA supervision when health care providers transitioned to virtual care in response to COVID-19. HB 1378 clarifies the ambiguity by adding telemedicine visits as a care scenario in which MA supervision can be provided. The bill added language to the “supervision” definition in RCW 18.360.010 that states, “During a telemedicine visit, supervision over a medical assistant assisting a health care practitioner with the telemedicine visit may be provided through interactive audio and video telemedicine technology.” This addition to the supervision provision took effect on April 14, 2021.
ESHB 1196 contains three important next steps for state agencies:
- OIC and HCA are required to issue rules for the implementation of ESHB 1196. OIC issued a CR 101 rulemaking notice in June. HCA announced in early July that the agency intends to file for rule making soon. WSHA will be an active participant in the rulemaking processes and will work with its Telemedicine Work Group to provide feedback on rule proposals.
- The Washington State Telehealth Collaborative is required to “study the need for an established patient/provider relationship before providing audio-only telemedicine, including considering what types of services may be provided without an established relationship.” The Collaborative must submit a report to the legislature on recommendations regarding the need for an established relationship for audio-only telemedicine by December 1, 2021. The Collaborative discussed the established relationship provision at its June 24, 2021, meeting and is currently collecting feedback from stakeholders. The Collaborative will vote on recommendations at its September 9, 2021 meeting before submitting its report to the legislature.
- OIC must conduct a study with HCA and the Collaborative to evaluate the use of audio-only telemedicine and make recommendations for its future use. The study will be completed by November 15, 2023, and must include the following information:
- Preliminary utilization trends for audio-only telemedicine;
- Qualitative data from health carriers, including Medicaid managed care organizations, on the burden of compliance and enforcement requirements for audio-only telemedicine;
- Preliminary information regarding whether requiring reimbursement for audio-only telemedicine has affected the incidence of fraud;
- Proposed methods to measure the impact of audio-only telemedicine on access to health care services for historically underserved communities and geographic areas;
- An evaluation of the relative costs to providers and facilities of providing audio-only telemedicine services as compared to audio-video telemedicine services and in-person services; and
- Any other issues the insurance commissioner deems appropriate.
WSHA strongly supported ESHB 1196 and made the bill part of our 2021 legislative agenda. Many hospitals began using audio-only telemedicine during the COVID-19 pandemic to provide remote care to patients who were unable to connect to an audio-visual telemedicine visit. The Insurance Commissioner’s order enabled audio-only telemedicine use, but the order was limited to the duration of the Public Health Emergency.
WSHA worked with Representative Marcus Riccelli and Senator Ron Muzzall to develop ESHB 1196 and its Senate companion to make audio-only telemedicine a permanent remote care modality. WSHA’s Telemedicine Work Group provided feedback during the bill’s design process and met regularly during session to discuss proposed amendments. WSHA members also testified and signed in support of ESHB 1196 during its legislative hearings. Additionally, many WSHA members advocated for the bill during WSHA’s Virtual Advocacy Days in February.
WSHA’s 2021 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high-priority bills that passed in 2021 to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for the release of upcoming resources on other laws and additional resources for implementation.
ESHB 1196 – Concerning audio-only telemedicine
SSB 5423 – Concerning telemedicine consultations
HB 1378 – Concerning the supervision of medical assistants
RCW 41.05.700 – PEBB and SEBB Telemedicine Statute
RCW 48.43.735 – Commercial Insurance Telemedicine Statute
RCW 71.24.335 – BHASO Telemedicine Statute
RCW 74.09.325 – Medicaid MCO Telemedicine Statute
WSHA Bulletin– “New telemedicine payment parity law and training requirements and temporary telemedicine changes as a result of the coronavirus (COVID-19) pandemic.” June 23, 2020.
WSHA Bulletin– “Telemedicine Payment Parity Law and Training Requirement Now in Effect.” January 8, 2021.