Information for Insurers and Providers on Coverage for Telehealth Services

The Department of Financial Services (DFS) issued Circular Letter 6 on March 15, 2020 and promulgated an emergency regulation on March 16, 2020 regarding health insurance coverage for telehealth services.  The Circular Letter provides guidance to insurers as to requirements for coverage of telehealth services.  The regulation prohibits insurers from imposing cost-sharing on telehealth services during the state of emergency declared by the Governor of New York State.  The Department of Financial Services has received inquiries from providers and insurers about health insurance coverage for telehealth visits.  This Q and A provides responses to these  inquiries.

Q-1. What is telehealth?

Insurance Law §§ 3217-h and 4306-g and Public Health Law § 4406-g define “telehealth” as the use of electronic information and communication technologies by a provider to deliver health care services to an insured individual while the individual is located at a site that is different from the site where the provider is located.

Q-2. Are insurers required to cover telehealth visits?

Individual and group health insurance policies and contracts delivered, or issued for delivery in New York, including through the NY State of Health Marketplace or the New York State Health Insurance Program (NYSHIP) for public employees, may not exclude a service that is otherwise covered under the health insurance policy or contract because the service is delivered via telehealth.  If the policy or contract would cover the service at the in-network provider’s office, an insurer is required to cover it if it is provided by telehealth by an in-network provider.

Q-3. Does a telephone call qualify as telehealth service during the state of emergency?

Yes.  During the state of emergency for COVID-19, electronic information and communication technologies include telephonic or video modalities (including technology commonly available on smart phones and other devices) when medically appropriate to deliver health care services for the assessment, diagnosis, consultation, treatment, care management, and self-management of a patient and if all other requirements for a covered health care service are met.

Q-4. What settings/locations are acceptable for providing and receiving telehealth services?

An insured or the insured’s provider may be located at any site that meets privacy and confidentiality standards, including the insured’s home or the home of the insured’s provider.

Q-5. Is an insurer permitted to impose cost-sharing for a telehealth visit during the state of emergency?

No.  DFS adopted a new emergency regulation that requires New York State insurance companies to waive cost-sharing, including, deductibles, copayments (copays), and coinsurance for in-network telehealth visits, whether or not related to COVID-19, during the state of emergency.

Q-6. Is an insurer required to provide notification to its network providers that they should not collect any deductible, copayment or coinsurance for a telehealth visit during the state of emergency?

Yes, the DFS emergency regulation promulgated on March 16, 2020 provides that an insurer shall provide written notification to its in-network providers that they shall not collect any deductible, copayment, or coinsurance in accordance with the emergency regulation.

Q-7. What is the effective date of the DFS telehealth regulation (Fifty-Eighth Amendment to 11 NYCRR 52.16 (Insurance Regulation 62))?

The effective date was March 16, 2020.

Q-8. Is an insurer permitted to require a health care provider to use a specific technology for telehealth visits?

No.  During the state of emergency all telehealth applications will be covered, as appropriate to properly care for the patient.

Q-9. What should a health care provider do if an insurer is placing additional credentialing and approval requirements on providers or requiring them to use a specific technology in order to reimburse for telehealth services?

Health Care Providers can file a complaint with DFS at www.dfs.ny.gov/complaint.

Q-10. Are there specific codes that should be used when a health care provider bills for telehealth services?

Health care providers should contact the insurer if they have any specific questions regarding coding.

Q-11. What is the provider’s responsibility to ensure that the telehealth visit is confidential?

Telehealth services are subject to the Health Insurance Portability and Accountability Act (HIPAA) and all other relevant laws and regulations governing confidentiality, privacy, and consent.  However, the Department of Health and Human Services Office for Civil Rights (OCR) has issued a Notification of Enforcement Discretion for telehealth services during the state of emergency.  OCR will not impose penalties for HIPAA noncompliance against health care providers in connection with the good faith provision of telehealth during this period. All providers must still take steps to reasonably ensure privacy during all patient-provider interactions.

Q-12.  If the insured has a high deductible health plan, as defined in the Internal Revenue Code § 223(c)(2), is the deductible required to be waived for telehealth services?

Yes, but only to the extent that the telehealth services were preventive services that would otherwise be exempt from the deductible or were provided to diagnose COVID-19.  The federal Department of Treasury recently issued guidance that permits a high deductible health plan to cover services for the diagnosis of COVID-19 before the deductible without it affecting the tax-preferred status of the plan and an individual’s corresponding health savings account.   For more information, please see the IRS Notice 2020-15 available at https://www.irs.gov/pub/irs-drop/n-20-15.pdf.  All other telehealth services may be subject to the deductible if the insured has a high deductible health plan.