Telehealth/Telemedicine & Insurance Coverage - Evangeline Zhou, WAAA Staff Attorney

I. Introduction: 

This memo is regarding coverage obligations for services for individuals with autism and related disabilities through tele-based platforms. Specifically ¹ telehealth coverage obligations for plans not subject to Washington state law. This memo will give a brief overview of telehealth for the following plans, as they constitute the majority of the plans our clients have : (1) Washington Medicaid/Apple Health, (2) plans regulated by ² Washington state law, and (3) plans regulated by federal law (i.e., ERISA). Please note, no insurance plan is explicitly required to cover telehealth. 

II. Research Summary 

A. Washington Medicaid/Apple Health 

Generally, Medicaid reimburses for telehealth services if they are medically necessary. See ³ WAC § 182-531-0100; WAC § 182-531-1730. Therefore, if your ABA is medically necessary, it likely is covered under Medicaid. This is especially true for children because of EPSDT. 

There are also more specific telehealth provisions for Medicaid-eligible children. Behavioral health administrative services organizations and managed care organizations will reimburse providers for behavioral health telehealth services for covered persons under 18 years old for telemedicine or store-and-forward if: (1) behavioral health administrative services organizations and managed care organizations provide coverage for behavioral health services when provided in-person and (2) the service is medically necessary. RCW 71.24.335. For covered persons aged 20 and younger, eligible ABA telemedicine services include: (1) program supervision when the child is present and (2) family training, which does not require the child’s presence. WAC 182-531A-1200. LBAs may use telemedicine to supervise the CBT’s delivery of ABA services to the client, the family, or both. Washington State Health Care Authority, Washington Apple Health (Medicaid): Applied Behavioral Analysis (ABA) Program Billing Guide (For clients age 20 and younger) (Jan 1. 2018) at 34.

Note, LBAs who use telemedicine are responsible for determining if telemedicine can be performed without compromising the quality of the parent training or the outcome of the ABA therapy treatment plan. Id. at 35. 

B. Washington Plans 

Under RCW 48.43.735, for insurance plans issued or renewed after January 1, 2017 and regulated by Washington law (i.e., fully-funded group plans, exempt self-funded, individual plans), providers will be reimbursed for telehealth/telemedicine services if all of the following criteria apply: 

(a) The plan provides coverage of the health care service when provided in person by the provider (b) The health care service is medically necessary (c) The health care service is a service recognized as an essential health benefit under section 1302(b) of the federal patient protection and affordable care act in effect on January 1, 2015; and (d) The health care service is determined to be safely and effectively provided through telemedicine or store and forward technology according to generally accepted health care practices and standards, and the technology used to provide the health care service meets the standards required by state and federal laws governing the privacy and security of protected health information. 

RCW 48.43.735(1). Please note, a health carrier may subject coverage of telemedicine to all terms and conditions of the plan in which the covered person is enrolled including, but not limited to, prior authorization, deductible, copayments, etc. RCW 48.43.735(6). Additionally, an insurance carrier is not required to reimburse a provider for a health care service that is not a covered benefit under the plan or if the healthcare provider is not a contracted provider under the plan. RCW 48.43.735(7). 

Therefore, while an insurance plan regulated by Washington law is not required to cover ABA, it will reimburse for ABA through telehealth if (1) it is medically necessary, (2) it can be safely and effectively provided through telemedicine according to generally accepted healthcare standards and meets HIPAA and Washington privacy law requirements; and (3) ABA is a covered benefit under the plan; and (4) the ABA provider is a contracted provider under the plan. 

Note, Washington’s mental health parity law mandates that mental health/substance abuse disorder telehealth services be provided at parity with medical/surgical telehealth services. 

III. ERISA Plans 

ERISA applies to fully-funded group health plans, which are defined as providing medical care. 29 U.S. Code § 1191b(1). Medical care is defined, in part, as “amounts paid for the diagnosis, cure, mitigation, treatment or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body.” 29 U.S. Code § 1191b(2)(a). Under this definition, telehealth services generally should qualify as medical care. If telehealth is a benefit provided as part of an existing group health plan, the employer must comply with ERISA’s disclosure requirements by providing for that information in the summary plan description. If telehealth is offered as a standalone benefit, then the employer should have a separate summary plan description for the telemedicine program.

To determine whether your insurance plan offers telehealth, you should examine your summary plan description or ask your insurance company for the telehealth summary plan description. If your plan offers telehealth, review it to see whether it will cover ABA or other autism treatments via telemedicine. 

Note, MHPAEA generally prohibits group health plans that provide mental health/substance use disorder benefits from imposing less favorable conditions or more stringent limits on those benefits than they do in the same classification of medical/surgical benefits. Depending on its terms, a group health plan that covers telehealth services for medical/surgical conditions may have to also cover telehealth services for mental health conditions on the same basis in order to comply with mental health parity.

1 _{Although telehealth and telemedicine technically have different definitions, they are often used interchangeably in practice and thus, will be used interchangeably here.}

2 _{Note, TRICARE and Medicare are not analyzed in this memo and may be subject to different coverage obligations.}

3 _{Coverage may differ depending on whether telehealth is live-video or store-and-forward. The analysis here assumes telehealth is live-video, which is less strict in what may be reimbursed.}