Telemedicine in Delaware : Policies

Delaware is steadily improving when it comes to their telemedicine policies. The state passed a parity law in March of 2018 which requires private payers to reimburse telemedicine visits at the same rate as in-person visits.

Telemedicine CPT Codes

Unique CPT codes do not exist specifically for telemedicine or telehealth. Instead a modifier is applied to existing codes.

• For interactive audio and video sessions, place a GT modifier in front of the CPT codes you typically use for in person services.
• For services provided via an asynchronous telecommunication system, simply add a GQ modifier in front of the CPT codes you typically use for in person services.

Telehealth Parity

Yes, there is a parity law requiring reimbursement based upon in-person services.

Access to telehealth in Delaware becomes law

Gov. John Carney signed a bill Wednesday expanding access to telehealth in the First State.

The Telehealth Access Preservation and Modernization Act of 2021 makes permanent some of the temporary provisions for remote medical care put in place last year to address the pandemic.

It extends the measure allowing patients to access telemedicine services even if they’ve never presented to their provider in-person before—when doing so would be impractical.  It also allows telehealth appointments to happen just over the phone, rather than requiring both audio and video technology. This is to help those without broadband internet or smartphones.

Among other things, the Bill will also bring Delaware into the Interstate Medical Licensure Compact (the “Compact”) which makes the process for obtaining medical licensure in 29 of the 50 states much simpler for those who already hold a primary license in one of the participating states.

What is the Current Law on Telemedicine Practice in Delaware?

Current Delaware law requires a physician to establish a valid physician-patient relationship “either in-person or through telehealth.”  (“Physicians who utilize telemedicine shall, if such action would otherwise be required in the provision of the same service not delivered via telemedicine, ensure that a proper physician-patient relationship is established either in-person or through telehealth …”).  In connection with the establishment of a physician-patient relationship, the physician must adhere to the following:

• Fully verifying and authenticating the location and, to the extent possible, identifying the requesting patient;
• Disclosing and validating the provider’s [physician’s]identity and applicable credential or credentials;
• Obtaining appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the use of telemedicine technologies as indicated in paragraph (b)(5) of the statute;
• Establishing a diagnosis through the use of acceptable medical practices, such as patient history, mental status examination, physical examination (unless not warranted by the patient’s mental condition), and appropriate diagnostic and laboratory testing to establish diagnoses, as well as identify underlying conditions or contra-indications, or both, to treatment recommended or provided;
• Discussing with the patient the diagnosis and the evidence for it, the risks and benefits of various treatment options;
• Ensuring the availability of the distant site provider or coverage of the patient for appropriate follow-up care; and
• Providing a written visit summary to the patient.

Moreover, subsection (h) of the law states that physicians using telemedicine technologies to provide medical care to patients located in Delaware must, prior to a diagnosis and treatment, fulfill at least one of the following:

• An appropriate examination in-person;
• Have another Delaware-licensed practitioner at the originating site with the patient at the time of the diagnosis;
• The diagnosis must be based using both audio and visual communication; or
• The service meets standards of establishing a patient-physician relationship included as part of evidenced-based clinical practice guidelines in telemedicine developed by major medical specialty societies, such as those of radiology or pathology.

How Do the New Regulations Change Telemedicine Practice in Delaware?

The Board’s proposed regulations stated that a “remote, audio-only examination” is not an “appropriate in-person examination” as that term is used in statutory section 1769D(h)(1).  After receiving public comment, the Board changed the statutory reference in the rule from section 1769D(h)(1) to section 1769D(b)(4).  The change was made after the Board became aware that, “despite the clear language of the statute, certain interest groups were opining that the requirement that a physician using telemedicine technologies to provide medical care to patients located in Delaware must first provide one of four options, including ‘an appropriate examination in-person,’ as that term is used in 24 Del.C. § 1769D(h)(1) did not actually require an in-person examination as an option.”  Namely, some groups were apparently arguing that a statutory requirement of an “in-person exam” can be accomplished via an audio-only exam.

The Board’s intent in doing so was to make clear that, under Delaware law and regulation, a remote, audio-only examination cannot be used to establish a valid physician-patient relationship. In drafting the regulatory language, the Board may have inadvertently injected some confusion because the term “in-person examination” referenced in the new regulation Section 19.1 does not actually exist in the cross-referenced statutory Section 1769D(b)(4). Moreover, Sections 1769D(b) and 1769D(h)(3) expressly permit the creation of a valid physician-patient relationship via telemedicine without an in-person exam (i.e., a diagnosis “based using both audio and visual communication”), subject to the standard of care.

In any event, providers and telemedicine companies should focus on these top four takeaways of the final rules:

1. Audio-Only Modality Not Sufficient for First Exam. A remote, audio-only examination is not an “appropriate in-person examination” as that term is used in section 1769D(b)(4).  In other words, despite any technical qualms with the regulation’s language, the Board’s interpretation and intent appear to be that a remote, audio-only examination cannot be used to establish a valid physician-patient relationship.
2. Provider-Patient Relationships. To create a valid physician-patient relationship using audio and visual communications pursuant to section 1769D(h)(3), the audio and visual communications must be live, real-time communications. Namely, it cannot be audio-video recordings subsequently transmitted asynchronously to the distant site telemedicine physician.
3. Acceptable Clinical Practice Guidelines. “Major medical specialty societies” as the term is used in section 1769D(h)(4) means specialty societies that are members of the Council of Medical Specialty Societies.  This further defines the term to minimize confusion and impose restrictions on which organizations constitute a major medical specialty society for purpose the statute.
4. Prescribing Opioids via Telemedicine. No opioid prescribing is permitted via telemedicine with the exception of addiction treatment programs offering medication assisted treatment that have received a Division of Substance Abuse and Mental Health (DSAMH) waiver to use telemedicine through DSAMH’s licensure or renewal process as outlined in 16 DE Admin. Code 6001 (Substance Abuse Facility Licensing Standards Sec. 4.15).  All other controlled substance prescribing utilizing telemedicine remains held to the same standards of care and requisite practice as when prescribing via in-person visits.

For more information on telemedicine, telehealth, virtual care, and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine and Digital Health Industry Team and read our 2017 Telemedicine and Digital Health Executive Survey.

See House Bill #69 Section 1(e) Amendments

Delaware Telemedicine Policy chp80

State Policy Overview

• Medicaid
• Private Payers
• Parity