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Massachusetts Enacts Telehealth Bill that Signals Further Expansion of Telehealth Services in the Commonwealth

Massachusetts began this year by enacting comprehensive health care legislation that will have a lasting impact on the provision of telehealth within the Commonwealth.  Massachusetts had previously expanded the use of telehealth through an emergency order at the start of the COVID-19 public health emergency, and required insurers to immediately cover the provision of telehealth services to ensure Massachusetts patients received some continuity of health care services when it was not safe to provide those services in person.  Now, through the passage of comprehensive health care legislation, entitled “An Act Promoting a Resilient Health Care System that Puts Patients First” (2020 Mass. Acts Ch. 260), Massachusetts has ensured that the expansion of telehealth services in the Commonwealth will continue long after the COVID-19 Pandemic ends.

First, the Act has uniformly broadened the statutory definition of “telehealth” in Massachusetts.  Specifically, “telehealth” has now been defined to include the use of synchronous[1] or asynchronous[2] audio, video, electronic media or other telecommunications technology, including, but not limited to:

  • interactive audio-video technology;
  • remote patient monitoring devices;
  • audio-only telephone; and
  • online adaptive interviews, for the purpose of evaluating, diagnosing, consulting, prescribing, treating or monitoring of a patient’s physical health, oral health, mental health or substance use disorder condition.

This broad definition of “telehealth” under Massachusetts law notably includes audio-only health care services, and consequently allows providers to deliver health care services through a wide variety of telecommunication technologies.

The Act is also aimed at reducing barriers to telehealth services for patients and providers alike.  Under the new telehealth laws, providers will not be required to documents a barrier to an in-person visit prior to providing telehealth services to their patients.  Providers and patients also are not limited by the type of setting where telehealth services are provided.  Patients, however, still have the right to decline telehealth services and receive in-person services instead, which providers must ensure they can deliver.

In addition to reducing certain barriers to telehealth services, the Act also expands certain coverage requirements and rate parity requirements that insurers must comply with when providing reimbursements for telehealth services.  Specifically, the Act expressly requires that insurers must provide coverage for health care services that are delivered via telehealth, provided that the following threshold requirements are satisfied: (1) the health care services would have been covered if they were performed in-person, and (2) the health care services may be appropriately provided through the use of telehealth.

Insurers must also provide rate parity for copayments, deductibles, and coinsurance agreements for health care services that are provided through telehealth, and the payment rates for such telehealth services cannot exceed the rate that would be applicable to the in-person delivery of those services.  The duration of this payment parity requirement, however, is limited to certain categories of health care services.  Specifically, the rate parity requirement is permanent for mental health services, but must be renewed after two years for telehealth services related to chronic disease management and primary care.  The rate parity for all other telehealth services extends only up to 90 days past the expiration of the COVID-19 state of emergency in Massachusetts.

The enactment of this Telehealth Bill likely signals that Massachusetts will continue to promote the expansion of telehealth services.  Indeed, the Act has also charged the Massachusetts Health Policy Commission with preparing annual reports over the next two years analyzing the use of telehealth services in the Commonwealth, and the effect of telehealth on patients’ access to health care and the overall cost to system.  The report must include the commission’s recommendations on the expansion of the appropriate provision of telehealth services moving forward, indicating the legislature’s intent to expand telehealth services within the Massachusetts health care system.

Massachusetts’ enactment of legislation promoting telehealth services reflects a national trend expanding the provision of telehealth even after the anticipated end of the COVID-19 Pandemic.  Insurers and health care providers alike should expect that this trend will continue, and should consult with counsel regarding the appropriate provision of telehealth services in Massachusetts and other jurisdictions to ensure that their telehealth policies and practices remain up to date.

[1]              “Synchronous telecommunication” refers to communications where information is communicated in real-time with the use of interactive audio and video communications equipment.  The real-time communication is between the patient and a distant physician or health care specialist who is performing the service reported. The patient must be present and participating throughout the communication.

[2]              In contrast, “Asynchronous telecommunication” refers to communications where information is stored and forwarded to be reviewed later by a physician or health care practitioner at a distant site. The medical information is reviewed without the patient being present.

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Adler Pollock & Sheehan P.C.

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