Last week, Texas Governor Greg Abbott and the Texas Department of Insurance (TDI) instituted measures to expand the use of telemedicine in response to the COVID-19.  A significant part of the federal government’s response to COVID-19, shared and expanded by various states, has been to permit additional uses of telemedicine and expand coverage for medical services provided via telemedicine.

Governor Abbott announced that, in addition to synchronous audiovisual communication, Texas providers could be reimbursed for consultations provided via phone at the same rate (and with the same limitations and coverage parameters) as in-person visits.  It had previously been announced that CHIP and Medicaid beneficiaries in Texas would have no patient responsibility (copayments or deductibles) for telemedicine services.  This announcement was followed by an emergency rule from TDI, enacting payment and coverage parity between telemedicine and in-person services.  Previously, Texas rules did not require coverage or payment for audio-only services.  This rule and Governor Abbott’s order only apply to state-regulated plans, including plans purchased on ACA exchanges.  Plans subject to ERISA requirements, such as self-funded employer plans, are not required to comply with these changes.  The rule likewise only applies to in-network providers.

As Seyfarth has reported in the previous weeks, federal and state regulators are rapidly announcing changes in health care regulations in response to the COVID-19 pandemic.  One of the chief goals has been to keep non-COVID-19 patients out of hospitals, clinics and waiting rooms by loosening restrictions around the use of telemedicine.  With significant parts of the State of Texas now on shelter-in-place or stay-at-home orders (including all major metropolitan areas), telemedicine may be the most effective way of reaching patients with non-urgent, non-COVID-19-related conditions.  Furthermore, with Texas having shut down elective procedure in order to preserve hospital capacity for pandemic cases, fewer specialist procedures will be scheduled or performed.  All providers should assess and evaluate their telemedicine capabilities and plans to transition to providing many (if not most) of their services via telemedicine.  The lengthy process of assessing platforms and technologies (primarily for privacy reasons) can now be short-circuited because of federal changes which allow many non-HIPAA-compliant platforms to be used, and OCR’s announcement that it will not pursue enforcement against violations related to telemedicine provided during the COVID-19 pandemic.  Providers can and should also assess their payor contracts and practice protocols to determine which services can be safely and effectively provided by telemedicine, and which will be reimbursed under third-party payor contracts.

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