Biography: Glaser is a health care attorney at Fredrikson & Byron, P.A.
Disclosures: Glaser reports no relevant financial disclosures.
October 21, 2020
3 min read

BLOG: Understanding telehealth rules is key during COVID-19 public health emergency

Biography: Glaser is a health care attorney at Fredrikson & Byron, P.A.
Disclosures: Glaser reports no relevant financial disclosures.
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COVID-19 has accelerated the telehealth visit trend. Providing telehealth across states raises licensure, reimbursement and malpractice coverage issues. The regulatory landscape is changing but there are important considerations.

First, understand that while CMS is allowing telehealth during the public health emergency (PHE), that does not automatically mean that state licensing boards or private payers agree. One of the challenges of our current health care scheme is that there are a multitude of parties overseeing care. Knowing that one governmental agency or private corporation allows an activity does not mean that others do. Many states are allowing out-of-state professionals to provide telehealth during the public health emergency, but these rules and policies vary tremendously and are constantly changing. For example, Wisconsin recently allowed its PHE to expire. Of course, it is possible but by the time you are reading this it will have been reinstated. As it is not feasible to discuss all of the different laws and policies, I will focus on a few general principles.


First, understand that whatever licensure risk exists falls primarily on each professional, rather than the group or health care entity. Generally speaking, licensing boards pursue individuals, not entities.

The good news is there have not been too many enforcement actions against competent practitioners providing telehealth services as long as they respect the few basic principles. For example, if one of your patients is on vacation in another state, the risk of conducting a telehealth visit with that person is extraordinarily low. Similarly, if a patient from a neighboring state drives to your office for care, permitting them to engage in a periodic telehealth visit from their out-of-state home also seems low risk. Note that “low risk” does not mean zero risk, but I can tell you I would, and do, routinely engage in a similar practice. As a lawyer, I am licensed in two states, but have worked with clients in nearly every state in the country.

By contrast, if you are going to run advertisements in a state promoting your telehealth services, I would recommend you obtain a license in that state. Some states require or permit registration in lieu of licensure. Seeing a new patient in a different state via telehealth is a materially higher risk than any services you provide to an established patient.

However you feel about the licensure risk, check with your malpractice insurer to be certain they will cover your telehealth services in other states. This is the risk most likely to fall upon the whole group; some insurers will refuse to cover you if you are providing services in a state in which you are not licensed. Ask before you start your telehealth program; and if one of your partners is practicing in another state, you want to be certain, they are insured.


Reimbursement is also piecemeal. Every private insurer has the ability to establish its own telehealth rules. While some states have required coverage of telehealth, generally, the insurer has authority to create its own policy. If you have any doubts, you may want to check with the payer before providing a service.

Medicare is covering both telehealth and telephone visits, but it treats these differently. Medicare defines a “telehealth” visit as one that involves a technology that has both audio and visual capabilities. It is not entirely clear whether you must use both the visual and audio technology, or whether the existence of the video option is sufficient. It is safest to treat an “audio only” encounter as a telephone visit.

During the PHE, you bill for these telehealth office visits the same way you would bill if the visit had occurred in person. You even use the place of service code you would have used had the visit occurred in person. The coding for remote hospital visits is more complicated. If you do a visit using an audio only, Medicare still will cover the visit using a different set of codes. Telephone calls are billed using codes 99441 through 99443. Those codes are reimbursed based on time, with a 99441 for calls lasting 5 to 10 minutes, a 99442 for chat of 11 to 20 minutes and a 99443 for a 21- to 30-minute call. If the audio call is done by a physical or occupational therapist, they too may bill using codes 98966 through 98968. While the CPT description for these telephone codes indicates these may only be used for new patients, CMS has specifically indicated the codes can be used for new patient visits as well.

Check state rules

I want to reiterate that just because Medicare is covering these services, does not mean the Medicaid or private payers will. You need to check the Medicaid rules in your state. As for Medicare Advantage Plans, those plans are akin to private insurance, but because the Medicare Advantage Plans are required to provide benefits at least as generous as the Medicare program, it would seem that these would be required to provide coverage for those codes.

As all elements of telehealth services are evolving rapidly, it is important to understand that this article will be obsolete quicker than most blog posts. If you have any questions about the legality of telehealth services, make sure you choose a lawyer who is familiar with the issues. Good advice on this topic need not be prohibitively expensive.