DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Division of Medicaid and Medical Assistance
FINAL
ORDER
State Plan Telemedicine Services
NATURE OF THE PROCEEDINGS:
Delaware Health and Social Services ("Department") / Division of Medicaid and Medical Assistance initiated proceedings to amend Title XIX Medicaid State Plan regarding telemedicine, specifically, to sunset the telemedicine pages of the Medicaid State Plan. The Department's proceedings to amend its regulations were initiated pursuant to 29 Del.C. §10114 and its authority as prescribed by 31 Del.C. §512.
The Department published its notice of proposed regulation changes pursuant to 29 Del. C. §10115 in the October 2022 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by October 31, 2022 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
SUMMARY OF PROPOSAL
The purpose of this notice is to advise the public that Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) is proposing to amend Delaware Title XIX Medicaid State Plan regarding telemedicine, specifically, to remove telemedicine as a state plan services from the Medicaid State Plan.
Background
Telemedicine is a cost-effective alternative to the more traditional face-to-face way of providing medical care (e.g., face-to-face consultations or examinations between provider and patient). States have the flexibility to determine whether (or not) to cover telemedicine; what types of telemedicine to cover; wherein the state it can be covered; how it is provided or covered; what types of telemedicine providers may be covered or reimbursed, as long as such providers are "recognized" and qualified according to Medicaid statute or regulation; and how much to reimburse for telemedicine services, as long as such payments do not exceed Federal Upper Limits.
In 2012, DMMA submitted a Medicaid State Plan, and received approval from CMS, to cover Telemedicine Services. Since telemedicine is a mode for delivery of services, and not an actual service itself, the Centers for Medicare & Medicaid Services (CMS) has subsequently provided guidance indicating States are not required to submit a (separate) SPA for coverage or reimbursement of telemedicine services if they decide to reimburse for telemedicine services the same way and in the same amount that they pay for face-to-face services, visits, and consultations. However, if a state does have a telemedicine SPA, they are required to submit a SPA whenever any changes are made to the way the state implements telemedicine coverage, including expansion of coverage.
During the COVID-19 Public Health Emergency (PHE), DMMA received emergency authority to expand telehealth services and received greater flexibility in administering them. Additionally, the Delaware Medical Assistance Program (DMAP) reimburses for telemedicine services the same way and in the same amount that it pays for face-to-face services, visits, and consultations. As a result, it does not require SPA authority to cover telemedicine. Therefore, DMMA will sunset telemedicine as a service from the Medicaid State Plan. This will allow the DMMA to continue covering telemedicine and telehealth, the way that it has during the PHE. Additionally, it will allow DMMA to be more flexible and respond more quickly to necessary changes in the way that medical services are delivered in the state. If DMMA does not sunset telemedicine from the Medicaid State Plan, the flexibilities that were put in place during the PHE will be lost.
Statutory Authority
Purpose
This proposed regulation aims to remove telemedicine as a state plan service from the Medicaid State Plan to allow DMMA to administer this mode of service delivery more effectively and timely.
Summary of Proposed Changes
Effective for services provided on and after September 1, 2022, DHSS/DMMA proposes to amend Delaware Title XIX Medicaid State Plan regarding telemedicine, specifically, to remove telemedicine as a state plan service from the Medicaid State Plan.
Public Notice
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 440.386 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, DHSS/DMMA gave public notice and provided an open comment period for 30 days to allow all stakeholders an opportunity to provide input on the proposed regulation. Comments were to have been received by 4:30 p.m. on October 31, 2022.
Centers for Medicare and Medicaid Services Review and Approval
The provisions of this state plan amendment (SPA) are subject to approval by the Centers for Medicare and Medicaid Services (CMS). The draft SPA page(s) may undergo further revisions before and after submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to significant change.
Provider Manuals and Communications Update
Also, there may be additional provider manuals that may require updates as a result of these changes. The applicable Delaware Medical Assistance Program (DMAP) Provider Policy Specific Manuals and/or Delaware Medical Assistance Portal will be updated. Manual updates, revised pages or additions to the provider manual are issued, as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute new or revised manual material and to provide any other pertinent information regarding DMAP updates. DMAP updates are available on the Delaware Medical Assistance Portal website: https://medicaid.dhss.delaware.gov/provider
Fiscal Impact Statement
There is no anticipated fiscal impact.
Summary of Comments Received with Agency Response and Explanation of Changes
The following summarized comments were received:
Comment: There were two endorsements of this regulation, accompanied with the request to continue to monitor outcomes of telehealth, and to ultimately include consumer choice in healthcare options.
Response: DMMA appreciates the support and will ensure that outcomes in all services provided are monitored and that consumers maintain choice.
DMMA is pleased to provide the opportunity to receive public comments and greatly appreciates the thoughtful input given by:
FINDINGS OF FACT:
The Department finds that the proposed changes as set forth in the December 2022 Register of Regulations should be adopted.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend Title XIX Medicaid State Plan regarding the Sunsetting Telemedicine, specifically, to remove telemedicine as state plan services from the Medicaid State Plan, is adopted and shall be final effective December 11th, 2022.
12/1/2022
Date of Signature
Molly K. Magarik, Secretary, DHSS
Attachment 3.1-A
Introductory Page 1
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE/TERRITORY: DELAWARE
AMOUNT, DURATION, AND SCOPE OF MEDICAL
AND REMEDIAL CARE AND SERVICES PROVIDED TO THE CATEGORICALLY NEEDY
TELEMEDICINE
The Delaware Medical Assistance Program (DMAP) covers medically necessary health services furnished to
eligible DMAP members as specified in the Medicaid State Plan. To facilitate the ability of recipients to
receive medically necessary services, DMAP allows for the use of a telemedicine delivery system for
providers enrolled under Delaware Medicaid.
Telemedicine services under DMAP are subject to the specifications, conditions, and limitations
set by the State. Telemedicine is the practice of health care delivery by a practitioner who is
located at a site, known as the distant site, other than the site where the patient is located,
known as the originating site, for the purposes of consultation, evaluation, diagnosis, or
recommendation of treatment. An approved originating site may include the DMAP member's
place of residence, day program, or alternate location in which the member is physically present
and telemedicine can be effectively utilized.
Providers rendering telemedicine must be able to use interactive telecommunications
equipment that includes, at a minimum, audio and video equipment permitting two-way, real
time, interactive communication between the recipient and the practitioner to provide and
support care when distance separates participants who are in different geographical locations.
The provision of services through telemedicine must include accommodations, including
interpreter and audio-visual modification, where required under the Americans with Disabilities
Act (ADA), to ensure effective communication.
Telephone conversations, chart reviews, electronic mail messages, facsimile transmissions or
internet services for online medical evaluations are not considered telemedicine.
All equipment required to provide telemedicine services is the responsibility of the providers.
Attachment 3.1-A
Introduction Page 2
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE/TERRITORY: DELAWARE
TELEMEDICINE-CONTINUED
PROVIDER QUALIFICATIONS
In order to provide telemedicine under DMAP, providers at both the originating and distant site must be
enrolled with DMAP or have contractual agreements with the managed care organizations (MCOs) and must
meet all requirements for their discipline as specified in the Medicaid State Plan.
For services delivered through telemedicine technology from DMAP or MCOs to be covered, healthcare
practitioners must:
COVERED SERVICES
DMAP covers medically necessary telemedicine services and procedures covered under the Title XIX State Plan.
Qualifying provider services include any covered State Plan service that would typically be provided to an
eligible individual in a face-to-face setting by an enrolled provider. Telemedicine is not limited based on the
diagnosed medical condition of the eligible recipient. All telemedicine services must be furnished within the
limits of provider program policies and within the scope and practice of the provider's professional standards
as described and outlined in DMAP Provider Manuals which can be found at:
http://www.dmap.state.de.us/downloads/manuals.html
NON-COVERED SERVICES
If a service is not covered in a face-to-face setting, it is not covered if provided through telemedicine. A service
provided through telemedicine is subject to the same program restrictions, limitations and coverage exist for
the service when not provided through telemedicine.
Attachment 4.19-B
Page 24
STATE PLAN UNDER TITLE XIX OF THE SOCIAL SECURITY ACT
STATE/TERRITORY: DELAWARE
METHODS AND STANDARDS FOR ESTABLISHING PAYMENT RATES (Continued)
Payment for the telehealth originating site facility fee is made at the same percentage of the Medicare rate that is used for practitioner services on the date of service. The State currently pays practitioners at 98% of Medicare rates. The originating site fee will also be paid at 98% of the Medicare fee for the same service.
The site fee is only for the originating site and the site provider would not be entitled to any other payment
for the telemedicine service which was delivered by the distant site.
Qualifying provider services include office visits, consultations, psychotherapy, medication management,
psychiatric interview or examination, substance abuse screening and brief intervention, neurobehavioral
examination, end stage renal disease services and medical nutrition therapy, etc.
Federally Qualified Health Centers and School-Based Wellness Centers acting in the role of an originating site
provider with no other separately identifiable service being provided will only be paid the originating site
telehealth fees and will not receive reimbursement for an encounter.
The telemedicine payment methodology shall be effective with dates of service on or after January 1, 2020.
Fee schedules for telemedicine provided services are available on the DMAP website at:
https://medicaid.dhss.delaware.gov/provider.
Except as otherwise noted in the Medicaid State Plan, State-developed fee schedule rates are the same for both government and private providers. Separate reimbursement is not made for the use of technological equipment and systems associated with a telemedicine application to render the service.
