Delaware Telemedicine Policy, Simplified.
Healthcare legislation is complicated. Let’s clarify a few things.
Delaware Telemedicine Policy, Simplified.
Healthcare legislation is complicated. Let’s clarify a few things.
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.
Unique CPT codes do not exist specifically for telemedicine or telehealth. Instead a modifier is applied to existing codes.
Yes, there is a parity law requiring reimbursement based upon in-person services.
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.
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:
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:
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:
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.