Pandemic Spurs Virtual Care Adoption and Supportive Legal Developments, According To Foley’s New 50-State Survey

09 February 2021 Media Contact: Dan Farrell News

But questions remain when it comes to payment parity and reimbursement rates

Foley & Lardner LLP today released its nationwide research survey that confirms significant legal developments supporting virtual care and details the landscape of state telehealth commercial insurance coverage and payment laws. Useful to health care providers, lawmakers, entrepreneurs, telemedicine companies, and other industry stakeholders, the survey serves as a comprehensive guide of telehealth laws and regulations as digital health technology continues to gain nationwide acceptance among health care payers, providers and patients.

The 2021 survey finds vast improvement in telehealth’s legal and policy landscape. Historically, one of the most significant barriers to adoption was limited or unclear reimbursement for telehealth and digital health services, but the COVID-19 pandemic compelled state and federal policymakers to remove restrictions and expand reimbursement for telehealth and virtual care at previously unseen rates. Forty-three states and the District of Columbia implemented a version of a state telehealth commercial payer law—and many in 2021 are expected to make additional efforts to update telehealth coverage laws and make permanent expansions temporarily adopted during the pandemic.

However, even as insurers have been generally willing to cover the new virtual services, questions remain when it comes to payment parity and reimbursement rates. Currently, 22 states maintain laws expressly addressing reimbursement of telehealth services (an increase from 16 states in 2019), and 14 of those offer true “payment parity” (an increase from 10 in 2019) meaning that providers outside those 14 states may find they receive lower payment for telehealth-based services compared to in-person services (i.e., same service code, but different reimbursement rates).

“Since our last report, telehealth coverage and remote patient monitoring services have been dramatically expanded largely due to the COVID-19 pandemic,” said Nathaniel Lacktman, Partner and Chair of the firm’s national Telemedicine & Digital Health Industry Team. “Health plans are offering more telemedicine and digital health coverage as part of a broader acceptance of virtual care; changes we believe will largely remain even after the Public Health Emergency ends.  The public health emergency did not create the telemedicine industry; it simply accelerated its inevitable growth.”

“Telemedicine and digital health care has played a critical role during COVID by allowing providers to safely deliver medical care when and where patients need it, whether urban or rural locations,” said Jacqueline Acosta, Special Counsel and one of the report’s authors. “While many legal and regulatory complexities across 50 states can create barriers to entry, the temporary waivers have allowed providers to deliver care in new and different ways, which may lead to blazing new digitized care pathways in the coming years.”

This marks the firm’s fourth annual publicly available survey on telemedicine. Every effort was made to capture the most recent policy language in each state as of January 2021. You can find the full 50-state survey of state telehealth commercial payer statutes here.

About Foley’s Telemedicine and Digital Health Industry Team

Foley’s Telemedicine and Digital Health Industry Team helps clients embrace emerging issues in telemedicine and digital health, enabling them to provide innovative care for patients in new markets around the block and around the world.  Our lawyers have been recognized by Chambers USA: America’s Leading Business Lawyers, which states: “Commentators describe the firm as ‘a market leader in telemedicine issues.’ ‘This is the Dream Team.’" (2020). For more information about the team and our capabilities, please visit www.foley.com/telemedicine.

About Foley & Lardner LLP

Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With approximately 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.

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