Change of Law: Hospital Action Required
The purpose of this bulletin is to inform hospitals about the new audio-only telemedicine regulations issued by the Office of the Insurance Commissioner (OIC) that take effect December 22, 2021. The new rules are based on the statutory audio-only telemedicine language found in in RCW 48.43.735 and provide clarity to providers and payers regarding:
- Patient consent and how to document consent;
- Unforeseen circumstances in which an audio-visual telemedicine visit switches to audio-only telemedicine;
- The inclusion of substitute providers for audio-only telemedicine under the established relationship requirement in RCW 48.43.735; and
- The definition of “same amount of compensation” to ensure audio-only telemedicine services are reimbursed as if they were provided in-person.
The new rules were issued as part of OIC’s implementation of HB 1196 (2021), which added audio-only telemedicine as a covered and reimbursable care modality into state law that is reimbursed at parity to in-person services. WSHA strongly supported HB 1196 and we were pleased the bill became law earlier this year. Please see WSHA’s bulletin on HB 1196 for additional information about the audio-only telemedicine law.
- Review this bulletin and OIC’s CR 103 filing to understand the new audio-only telemedicine rules applicable to commercial insurance plans and providers billing commercial insurance plans for audio-only telemedicine services.
- Educate providers and billing departments about the patient consent, documentation, and billing requirements contained in the new rules.
The new rules apply to:
- Providers providing and billing commercial insurance plans for audio-only telemedicine services; and
- Commercial insurance plans billed for audio-only telemedicine services.
The rules do not apply to Medicaid Managed Care Organizations (MCO), Public Employee Benefit Board (PEBB) plans, and School Employee Benefit Board plans (SEBB). Instead, the Health Care Authority will conduct its’ own audio-only telemedicine rulemaking for Medicaid MCOs, PEBB, and SEBB.
HB 1196 made audio-only telemedicine a covered and reimbursable telemedicine care modality for commercial payers effective July 25, 2021. The law 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.” HB 1196 required OIC to issue rules for the law’s implementation. OIC’s new rules provide clarity to providers and payers on areas of RCW 48.43.735 where the law is silent.
Patient Consent and Documentation Requirement
The audio-only telemedicine law requires providers to obtain patient consent in order to bill for audio-only telemedicine services. However, the law does not define “patient consent” and is silent on the process and requirements for obtaining and documenting patient consent.
To address this, OIC added a definition into WAC 284-170-130(31) that defines “patient consent” as:
“Patient consent” means a voluntary and informed decision by a patient, following an explanation by the provider or auxiliary personnel under the general supervision of the provider presented in a manner understandable to the patient that is free of undue influence, fraud or duress, to consent to a provider billing the patient or the patient’s health plan for an audio-only telemedicine service under RCW 48.43.735 or WAC 284-170-433.
New WAC 284-170-433(6) restates the statutory requirement for each patient to consent to be billed for audio-only telemedicine. According to WAC 284-170-433(6)(b)(iii), consent may be obtained:
- As part of the process for making the audio-only telemedicine appointment; or
- Verbally as part of the audio-only telemedicine encounter record.
Consent may be obtained either verbally or in writing by the provider or auxiliary personnel under the provider’s general supervision and must be documented in the patient’s medical record. The patient’s initial consent is valid for 12 months before expiring and must be reobtained for each subsequent 12-month period to continue billing for audio-only telemedicine services. The documentation of the patient’s consent must be retained for a minimum of five years and made available to payers as needed as a condition for claim payment. WAC 284-170-433(6)(b)(iv) authorizes patients to revoke their consent for billing either verbally or in writing. If a patient revokes their consent, the revocation must also be documented in the patient’s medical record and retained for a minimum of five years.
Please see WAC 284-170-433(6) for the full language concerning the collection and documentation of patient consent.
Technology Shifts due to Unforeseen Circumstances
The audio-only telemedicine law is silent on circumstances in which an audio-visual telemedicine visit switches to an audio-only telemedicine visit due to a technological disruption or another situation. Because of this, the new regulations specify in WAC 284-170-433(7):
(a) A carrier may not deny, reduce, terminate or fail to make payment for the delivery of health care services using audio and visual technology solely because the communication between the patient and provider during the encounter shifted to audio-only due to unanticipated circumstances. In these instances, a carrier may not require a provider to obtain consent from the patient to continue the communication.
(b) A carrier has no obligation to reimburse a provider for both an audio-visual and an audio-only encounter when both means of communication have been used during the encounter due to unforeseen circumstances.
Inclusion of Substitute Providers Under the Established Relationship Definition
The audio-only telemedicine law requires patients and providers to have an established relationship in order for providers to receive reimbursement for audio-only telemedicine services beginning January 1, 2023. The established relationship provision requires the patient to have:
- Had at least one in-person visit within the past year with the provider providing audio-only telemedicine or with a provider employed at the same clinic; or
- Been referred to the provider providing audio-only telemedicine by another provider who had at least one in-person visit with the patient within the past year.
However, stakeholders recommended OIC address the use of substitute providers (locum tenens) in the regulations to ensure reimbursement for audio-only services provided by substitute providers. Because of this, OIC adopted an expanded definition of “established relationship” in WAC 284-170-130(13) that states:
(a) The covered person has had at least one in-person appointment within the past year with the provider providing audio-only telemedicine, with a provider employed at the same clinic as the provider providing audio-only telemedicine, or with a locum tenens or other provider who is the designated back up or substitute provider for the provider providing audio-only telemedicine who is on leave and is not associated with an established clinic; or
(b) 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. A referral includes circumstances in which the provider who has had at least one in-person appointment with the covered person participates in the audio-only telemedicine encounter with the provider to whom the covered person has been referred.
“Same Amount of Compensation” Definition
Due to HB 1196’s enactment, RCW 48.43.735 requires commercial insurance plans to “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.” However, RCW 48.43.735 does not define the term “same amount of compensation.” Because of this, OIC added a definition of “same amount of compensation” into WAC 284-170-130 to provide clarity for both payers and providers. WAC 284-170-130(38) states:
“Same amount of compensation” means providers are reimbursed by a carrier using the same allowed amount for telemedicine services as they would if the service had been provided in-person unless negotiation has been undertaken under RCW 48.43.735 or WAC 284-170-433(2). Where consumer cost-sharing applies to telemedicine services, the consumer’s payment combined with the carrier’s payment must be the same amount of compensation, or allowed amount, as the carrier would pay the provider if the telemedicine service had been provided in person. Where an alternative payment methodology other than fee-for-service payment would apply to an in-person service, “same amount of compensation” means providers are reimbursed by a carrier using the same alternative payment methodology that would be used for the same service if provided in-person, unless negotiation has been undertaken under RCW 48.43.735 or WAC 284-170-433(2).
Hospitals should review the new regulations and develop processes for obtaining and documenting patient consent for audio-only telemedicine billing.
New WAC 284-170-433 and the additions to WAC 284-170-130 are not currently available online as part of chapter 284-170 WAC. Because of this, hospitals should refer to OIC’s CR 103 filing until the new regulations’ December 22, 2021 effective date.
HB 1196 required OIC to issue rules for the implementation of HB 1196. OIC solicited topics from stakeholders to address through regulations to provide clarity to providers and commercial payers. WSHA circulated OIC’s stakeholder drafts to our Telemedicine Workgroup and provided feedback to OIC on its’ proposals. WSHA appreciated OIC’s engagement with stakeholders and will continue to engage with OIC to advance audio-only telemedicine.
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.