Audio-Only Telemedicine Law Changes: Hospital Facility Fees Prohibited and Established Relationship Requirement Modified

Purpose
The purpose of this bulletin is to inform hospitals about two changes impacting audio-only telemedicine reimbursement that were enacted into law during the 2022 legislative session.

• Effective June 9, 2022, hospitals licensed under chapter 70.41 RCW that serve as either an originating or distant site for audio-only telemedicine are prohibited from charging a facility fee to uninsured and self-paying patients.
• Beginning January 1, 2023, providers seeking reimbursement for audio-only telemedicine services must establish a patient-provider relationship consistent with the newly modified “established relationship” definition.

These changes build on the original facility fee and established relationship provisions in the audio-only telemedicine law passed as HB 1196 in 2021. WSHA supports the established relationship requirement for audio-only telemedicine and maintaining it was part of our 2022 legislative agenda. We were deeply involved in the negotiations to ensure the final “established relationship” definition passed in HB 1821 (2022) reflected the positions taken by our Public Policy Committee. The modified definition provides more flexibility to audio-only telemedicine providers while bolstering the underlying patient safety protections offered by the established relationship requirement.

Applicability/Scope
Facility Fees: The facility fee prohibition applies to hospitals licensed under Chapter 70.41 RCW.

Established Relationship Requirement: The established relationship requirement applies to all providers seeking reimbursement for audio-only telemedicine services from commercial insurance plans in RCW 48.43.735, Medicaid plans in RCW 74.09.325, Behavioral Health Administrative Services Organizations (BHASO) in RCW 71.24.335, and Public Employee Benefits Board (PEBB) and School Employees Benefits Board (SEBB) plans in RCW 41.05.700.

Recommendations

• Review this bulletin alongside HB 1708 (facility fee prohibition for audio-only telemedicine) and HB 1821 (established relationship for audio-only telemedicine) to understand the changes.
• Forward this bulletin to hospital billing departments to ensure awareness of the audio-only telemedicine facility fee prohibition. Hospitals that bill a facility fee for audio-only telemedicine should cease billing the fee in accordance with HB 1708.
• Forward this bulletin to audio-only telemedicine providers so they can determine if the new flexibility offered by the modified “established relationship” definition is appropriate for their patients and care plans.

Overview
Passed in 2021, HB 1196 made audio-only telemedicine a covered and reimbursable telemedicine care modality for commercial insurance, Medicaid, PEBB/SEBB, and BHASO plans. The law requires reimbursement for audio-only telemedicine at parity to in-person care services. Beginning January 1, 2023, providers must have an established relationship with their patients to receive reimbursement for services. HB 1196 also prohibited hospitals that serve as either an originating site or distant site for audio-only telemedicine from billing a facility fee to commercial insurance, Medicaid, PEBB/SEBB, BHASO plans.

HB 1708: Prohibiting Audio-Only Telemedicine Facility Fees
HB 1196 prohibited hospitals that serve as either an originating site or as a distant site for audio-only telemedicine from billing a facility fee to commercial insurance, Medicaid, PEBB/SEBB, and BHASO plans. However, HB 1196 did not apply the same prohibition for uninsured and self-paying patients because its’ scope only contemplated reimbursement statutes. Because of this, the legislature passed HB 1708 to apply the same prohibition of audio-only telemedicine facility fees to self-pay and uninsured patients. The prohibition language is added as a new section to chapter 70.41 RCW, effective June 9, 2022. The language passed as HB 1708 states in its’ entirety, “A hospital that is an originating site or distant site for audio-only telemedicine may not charge a facility fee.”

HB 1821: Established Relationship Requirement Modifications
HB 1196 required providers seeking reimbursement from commercial insurance, Medicaid, PEBB/SEBB, and BHASO plans to have an established patient-provider relationship beginning January 1, 2023. HB 1196 originally defined “established relationship” as:

“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.”

However, HB 1196 also required the Washington State Telehealth Collaborative 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 Telehealth Collaborative’s study resulted in HB 1821’s modifications to the “established relationship” definition. The modifications are:

#1: Bifurcated Requirements for Behavioral Health and “Any Other Health Care Service”
The original “established relationship” definition did not distinguish between behavioral and physical health services. However, stakeholders urged that the definition distinguish between the two service types since behavioral health services do not always necessitate an in-person visit. Because of this, HB 1821 modifies the definition so that it distinguishes between behavioral health services and “any other health care service.” This is a significant change that allowed for changes #2 and #3 regarding how the relationship is established.

#2: Audio-Visual Telemedicine Allowed for Establishing the Relationship
The original “established relationship” definition required the patient-provider relationship to be established through an in-person visit and did not allow for the relationship to be established through audio-visual telemedicine under any circumstances. HB 1821 supplements the in-person requirement with specific allowances:

• For behavioral health services: Audio-visual telemedicine or an in-person visit may be used to establish the patient-provider relationship. This is a permanent change.
• For any other health care service: Audio-visual telemedicine is temporarily allowed to satisfy the relationship for audio-only telemedicine during calendar year 2023 only. The allowance ends after CY 2023, which means the original in-person visit requirement will be the only method to establish the relationship and receive reimbursement.

#3: Relationship Duration Extended
The original established relationship definition required the provider to see the patient in-person annually. HB 1821 extends the duration between visits:

• For behavioral health services: The duration is extended from 1 year to 3 years.
• For any other health care service: The duration is extended from 1 year to 2 years.

#4: Medical Record Access Required
HB 1196 was silent regarding a provider’s access to the patient’s medical records as a condition for audio-only telemedicine reimbursement. However, the Telehealth Collaborative received stakeholder feedback indicating that medical records access is necessary to promote patient safety. Because of this, HB 1821 requires all audio-only telemedicine providers to have “access to sufficient health records to ensure safe, effective, and appropriate care services.” This requirement allows providers the discretion to determine whether they have enough medical information about a patient to safely provide audio-only telemedicine.

#5: More Practice Scenarios Satisfy the Established Relationship
HB 1196 allowed providers employed at the same clinic to satisfy the established relationship requirement for the same patient if one of the providers met the established relationship requirement individually for the particular patient. However, the Telehealth Collaborative received stakeholder feedback that the term “clinic” potentially limited referrals across medical groups and integrated care delivery systems. Because of this, HB 1821 expands the practice settings to include medical groups and integrated delivery systems operated by a carrier licensed under Chapter 48.44 RCW or Chapter 48.46 RCW
Full Established Relationship Definition
The full “established relationship” definition, as modified by HB 1821 in 2022, states:

“Established relationship” means the provider providing audio-only telemedicine has access to sufficient health records to ensure safe, effective, and appropriate care services and:

(i) For health care services included in the essential health benefits category of mental health and substance use disorder services, including behavioral health treatment:

(A) The covered person has had, within the past three years, at least one in-person appointment, or at least one real-time interactive appointment using both audio and video technology, with the provider providing audio-only telemedicine or with a provider employed at the same medical group, at the same clinic, or by the same integrated delivery system operated by a carrier licensed under chapter 48.44 or 48.46 RCW as the provider providing audio-only telemedicine; or

(B) The covered person was referred to the provider providing audio-only telemedicine by another provider who has had, within the past three years, at least one in-person appointment, or at least one real-time interactive appointment using both audio and video technology, with the covered person and has provided relevant medical information to the provider providing audio-only telemedicine.

(ii) For any other health care service:

(A) The covered person has had, within the past two years, at least one in-person appointment, or, until January 1, 2024, at least one real-time interactive appointment using both audio and video technology, with the provider providing audio-only telemedicine or with a provider employed at the same medical group, at the same clinic, or by the same integrated delivery system operated by a carrier licensed under chapter 48.44 or 48.46 RCW as the provider providing audio-only telemedicine; or

(B) The covered person was referred to the provider providing audio-only telemedicine by another provider who has had, within the past two years, at least one in-person appointment, or, until January 1, 2024, at least one real-time interactive appointment using both audio and video technology, with the covered person and has provided relevant medical information to the provider providing audio-only telemedicine.”

Please see HB 1821 for how the modified definition will appear in RCW 48.43.735, RCW 74.09.325, RCW 71.24.335, and RCW 41.05.700.

Next Steps
Facility Fees
Any hospitals that bill a facility fee for audio-only telemedicine should cease billing for the fee in accordance with HB 1708.

Established Relationship Requirement
Audio-only telemedicine providers should review the modified “established relationship” definition and determine any appropriate next steps to take advantage of the expanded flexibility. Providers should note that change #2 allowing for audio-visual telemedicine or an in-person visit to establish the patient-provider relationship for non-behavioral health services is only valid for CY 2023. For the allowance to continue, the legislature would need to make the allowance permanent during the 2023 legislative session. WSHA will monitor this issue during the interim and determine next steps for advocacy.

WSHA’s 2022 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 2022 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 release of upcoming resources on other laws and additional resources for implementation.

References
HB 1708 (2022)
HB 1821 (2022)
HB 1196 (2021)
WSHA Bulletin: Audio-Only and Other Telemedicine Law Changes to Take Effect, July 15, 2021