Nov 10, 2018
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Delivering Virtual Pediatric Care Across State Lines: Regulatory Barriers and Opportunities

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This blog post has been prepared in collaboration with Nemours. Ms. Boyer is a Manager of Nemours Children’s Hospital. Maya Upplauru is an associate in Crowell & Moring’s Health Care Group in Washington, D.C.

This Bulletin is brought to you by AHLA’s Children’s Health Affinity Group, which is part of the Academic Medical Centers and Teaching Hospitals and In-House Counsel Practice Groups.

One of the most fear-inducing experiences for new and first-time parents is the middle of the night illness of a young child. Many may head directly to the emergency department (ED) because they lack any means to communicate with their health care provider after-hours. Parents of children with chronic conditions or rare diseases are often forced to travel long distances to see specialists at regional centers of excellence and may struggle to check in or get questions answered once they are back at home. Teenagers managing chronic conditions may prematurely discontinue their treatment plan when they transition to college in a different state or when they enter the working world after college.

Today’s tech savvy parents are comfortable with digital health care solutions that are available 24 hours per day on their mobile phones, as they provide experiences that are similar to virtually any other products or services outside of health care. Yet too often today, their experience with the health care industry does not meet their expectations for digital access, efficiency and convenience.

Virtual care services, such as telehealth and remote patient monitoring, are increasingly being used to create a better experience and deliver convenient, effective care for parents and caregivers of young children. More specifically, telehealth can provide an access point to health care for children and families at times when they cannot reach their primary care provider, are unable to travel, or do not need an in-person visit and can avoid exposure to additional contagions at the ED or doctor’s office.

In low acuity, high distress cases such as a high fever, ear pain, respiratory illness and vomiting, telehealth providers can provide direct care or advise the family whether an ED or primary care visit is warranted. This kind of support is not only reassuring for young families, but can help reduce pressure on EDs so they can prioritize the sickest patients, educate families about which level of care is most appropriate for future health needs, and reduce unnecessary costs to the families and to the health care system.

Telehealth can also help to ensure continuity of care for families who may move or seek specialty care across state lines and want to keep in touch with their provider, particularly for children with complex or chronic diseases or adolescents who attend college out of state.

Challenges

Telehealth technology has the potential to improve outcomes and patient experience, while improving cost through more appropriate utilization of health care services. Pediatrics is particularly ripe for disruption by digital health technologies, including telehealth, virtual care, and remote patient monitoring solutions, because of the widespread adoption of technology by children and their parents as well as the generally low acuity of most common childhood illnesses. Yet there are still significant regulatory barriers that stand in the way of ubiquitous access to telehealth and related services, especially across state lines. Below, we have outlined several of these issues, focusing on the Medicaid and Children’s Health Insurance Programs (CHIP) populations.

  • Inconsistent State Definitions: The definition of “telehealth” (or “telemedicine”) varies widely across states and remains completely undefined in certain states. Some states include additional modalities, such as “store and forward” (e.g. the patient takes a picture and sends it to the provider) as well as remote patient monitoring, as part of their telehealth definition, while others exclude them. All of these variations make it more difficult for telehealth services to be provided across state lines.
  • State Licensure: Each state has a different set of licensure requirements for health care providers which can make it difficult for providers in different states to deliver care or conduct consultations with patients who may have difficulty traveling. Providers must be licensed in each state where their patients are located, which may lead to multiple fees, rules and administrative processes for them to meet the needs of their patients. The Interstate Medical Licensure Compact (IMLC) is aimed at streamlining this process, but not every state has signed on and, even in those states that participate, obtaining a license can still be costly and burdensome. Some states have enacted telehealth-specific licensure programs – such as New Mexico – which may address some of these challenges.
  • Scope of Practice: Certain states have laws limiting the scope of practice that impact telehealth. For example, some states have prohibitions on the corporate practice of medicine, which create barriers to different types of entities providing telehealth services. Further, some states limit or restrict which types of providers are eligible to receive payment for telehealth services.
  • Coverage Parity: Many states do not require insurance coverage of telehealth services, and some payers, including Medicaid Managed Care Organizations (MCOs), limit coverage to in-network providers only. The resulting confusion about which services are covered– in-person versus via telehealth– can place administrative and financial burdens on patients and families, especially when they receive unexpected bills for services they believed to be covered. Additionally, there is often confusion among providers and payers, resulting in payer denials of coverage or reimbursement.
  • Reimbursement Parity: Some states do not require reimbursement parity between in-person and virtual services of the same kind. If a provider will be reimbursed less for providing the same service virtually, this provides a disincentive to provider adoption and therefore further limits access to virtual care. Again, in some cases, certain provider types are completely excluded from reimbursement.
  • Billing and Coding: There is a lack of uniformity for telehealth billing codes and coding guidelines across states, which leads to incorrect billing and confusion among providers and patients. In some cases, different payers require certain modifiers and place of service codes, making it hard for providers to track and navigate a wide variety of requirements and remedy claims issues. These challenges are exacerbated when a provider works across state lines, as the number of payers and their respective requirements multiply.
  • Broadband Access: Across rural and urban settings, connectivity can be challenging for underserved populations. Rural families may lack broadband access, and urban families may rely solely on mobile connectivity. The Federal Communications Commission (FCC) offers programs to subsidize the cost of broadband, but these programs generally apply to connectivity for providers, not for patients, therefore addressing only part of the problem.

Opportunities

The federal government has made a few encouraging strides that could help to address some of these challenges. These initiatives include:

  • FCC Connected Care Pilot: The FCC has issued a Notice of Inquiry regarding telehealth for low-income consumers. While the comment period is closed, the pilot is a signal that the FCC is interested in creative solutions to solve the connectivity problems described above, within the agency’s statutory limitations.
  • CMS Integrated Care for Kids Model: Building from a Request for Information on pediatric health earlier this year, CMS has announced eight cooperative agreements for up to $16 million each in funding for innovative state Medicaid models addressing behavioral and physical health needs arising from the nation’s opioid crisis. Telehealth and digital health services bring significant value in addressing the health concerns of children; however, more must be done to address challenges relating to providing care across state lines.
  • Modernization of Reimbursement Policy for Digital Health: Changes to Medicare payment policy for telehealth could have a positive downstream impact on Medicaid and other pediatric payers. In the proposed 2019 Physician Fee Schedule Rule, CMS proposed several new remote patient monitoring and virtual check-in codes. Further, the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (CHRONIC) Care Act, passed this year as part of a larger budget deal, aimed at expanding telehealth services for certain chronic condition populations.

In addition to these initiatives, the federal government could make continued progress in the following ways:

Building on Existing Efforts to Increase Evidence

  • Funding Additional Research: More data is needed on the impact of virtual care and other consumer digital health technologies on access, satisfaction, quality, cost and outcomes for children and families. Areas ripe for research and potential future cost-savings include: avoidable ED visits and readmissions, behavioral health services, chronic disease management, and children with medical complexity. Particular attention should be paid to the unique needs of children and pediatric use cases, and how those needs differ from the adult population.
  • Resources for Best Practices: Further investment is needed to identify and disseminate best practices for telehealth and other virtual care services to state Medicaid and CHIP programs. This includes identification of any unique barriers for the pediatric population and ways to address them, and compiling emerging practices, their impact and lessons learned from existing initiatives implementing telehealth services across all federal agencies including the Health Resources and Services Administration (HRSA), the U.S. Department of Defense (DoD), and the U.S. Department of Veterans Administration (VA), to share and encourage alignment across federal programs. This data could also be shared with state Medicaid and CHIP programs.

Leverage Current Policies and Federal Initiatives

  • New Demonstration Project Focusing on the Multi-State Challenge: CMS could launch a regional, multi-state demonstration pilot to test a set of aligned Medicaid policies impacting digital health access and payment focused on Medicaid and CHIP, especially when care is provided across state lines.
  • Integrate Telehealth as a Priority Focus in Existing Models: Exploring and/or promoting the use of telehealth and other virtual health services in existing Center for Medicare and Medicaid Innovation initiatives, like Accountable Communities for Health, where digital health technologies may be foundational to linking clinical care with essential community social services for children and supporting care for children in a range of settings, including school based clinics.

Finally, CMS could provide technical assistance and resources, such as model telehealth service agreements, to support states and providers in managed care contract negotiation as well as service contracts that abide by fraud and abuse regulations to expand coverage and access to consumer digital health technologies for children and families. Two precedent examples of these model contract provisions are (1) the model Business Associate Agreement published by the HHS Office for Civil Rights to aid covered entities entering into agreements with business associates under HIPAA, and (2) the EHR Contracts Untangled resource published by the Office of the National Coordinator for Health IT (ONC) to assist providers in contract negotiation with electronic health record vendors.

Conclusion

Technology offers the opportunity to improve the way health care is delivered and received, and is likely to continue shaping the health care market well into the future. Patients and families are increasingly demanding more convenient health care services, including virtual access to care, despite the many regulatory barriers impeding the seamless flow of care within and across state lines. Opportunities to improve the regulatory landscape abound, and realizing these opportunities could result in increased access, reduced cost for certain populations, and overall improved outcomes. However, such a future requires close partnership between providers, state governments and the federal government to jointly chart a path toward seamlessly connected care.



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