Notice Text

• Notice Text
• CO_20221010_AdoptedRules12022-00406.doc

AGOpinion

Philip J. Weiser		Ralph L. Carr
Attorney General		Colorado Judicial Center
		1300 Broadway, 10th floor
Natalie Hanlon Leh		Denver, CO 80203
Chief Deputy Attorney General		Phone 720-508-6000
Eric R. Olson		Office of the Attorney General
Solicitor General	STATE OF COLORADO
	DEPARTMENT OF LAW

Tracking Number: 2022-00406

OPINION OF THE ATTORNEY GENERAL RENDERED IN CONNECTION WITH THE RULES ADOPTED BY THE Medical Services Board (Volume 8; Medical Assistance, Children;s Health Plan) ON 09/09/2022

10 CCR 2505-10
MEDICAL ASSISTANCE - STATEMENTS OF BASIS AND PURPOSE AND RULE HISTORY

The above-referenced rules were submitted to this office on 09/09/2022 as required by section 24-4-103, C.R.S. This office has reviewed them and finds no apparent constitutional or legal deficiency in their form or substance.
September 29, 2022 11:54:25 MST

Philip J. Weiser Attorney General by Eric R. Olson Solicitor General

Title of Rule: Revision to the Medical Assistance Act Rule concerning Telemedicine Electronic-Health (eHealth) Entities Rule Number: MSB 22-05-03-A Division / Contact / Phone: Health Programs Office / Russ Zigler / 303-866-5927 SECRETARY OF STATE RULES ACTION SUMMARY AND FILING INSTRUCTIONS SUMMARY OF ACTION ON RULE(S) 1. Department / Agency Name: Health Care Policy and Financing / Medical Services Board 2. Title of Rule: MSB 22-05-03-A, Revision to the Medical Assistance Act Rule concerning Telemedicine Electronic-Health (eHealth) Entities 3. This action is an adoption of: an amendment

4. Rule sections affected in this action (if existing rule, also give Code of Regulations number and page numbers affected):
Sections(s) 8.095 (NEW), 8.200.3.B and .3.D, 8.520.4.B, 8.700.1.C, 8.730.3.B, 8.740.1, 8.750.3.B, Colorado Department of Health Care Policy and Financing, Staff Manual Volume 8, Medical Assistance (10 CCR 2505-10).
5. Does this action involve any temporary or emergency rule(s)?	No
If yes, state effective date:
Is rule to be made permanent? (If yes, please attach notice of hearing).	Yes

PUBLICATION INSTRUCTIONS* Insert the newly proposed text beginning at 8.095 through the end of 8.095.8.A. Replace the current text at 8.200 with the proposed text beginning at 8.200.3.B through the end of 8.200.3.B.3. Replace the current text at 8.200.3.D with the proposed text beginning at 8.200.3.D.2.c.7 through the end of 8.200.3.D.2.c.7. Replace the current text at 8.520 with the proposed text beginning at 8.520.4.B.1.g through the end of 8.520.4.B.1.g. Replace the current text at 8.700 with the proposed text beginning at 8.700.1.C through the end of 8.700.1.C.1. Replace the current text 8.730 with the proposed text beginning at 8.730.3.B.11 through the end of 8.730.3.B.11. Replace the current text at 8.740 with the proposed text beginning at 8.740.1 through the end of 8.740.1. Replace the current text at 8.750.3 with the proposed text beginning at 8.750.3.B through the end of 8.750.3.B. This rule is effective October 30, 2022. Title of Rule: Revision to the Medical Assistance Act Rule concerning Telemedicine Electronic-Health (eHealth) Entities Rule Number: MSB 22-05-03-A Division / Contact / Phone: Health Programs Office / Russ Zigler / 303-866-5927 STATEMENT OF BASIS AND PURPOSE 1. Summary of the basis and purpose for the rule or rule change. (State what the rule says or does and explain why the rule or rule change is necessary). House Bill 21-1256 gave the Department authority, at C.R.S. § 25.5-5-320(1), to promulgate rules specifically relating to entities that deliver health-care or mental health-care services exclusively or predominately through telemedicine, otherwise referred to as Electronic-Health entities (eHealth Entities). The proposed rule creates a Telemedicine section in rule that delineates telemedicine service coverage and eligibility generally, while also defining eHealth Entities. Under the proposed rule, existing rule benefit sections that include telemedicine services will reference the new Telemedicine section rather than defining it in each benefit section separately. 2. An emergency rule-making is imperatively necessary ? to comply with state or federal law or federal regulation and/or ? for the preservation of public health, safety and welfare. Explain: 3. Federal authority for the Rule, if any: 4. State Authority for the Rule: Sections 25.5-1-301 through 25.5-1-303, C.R.S. (2022); C.R.S. 25.5-5-320(1) (2021) Title of Rule: Revision to the Medical Assistance Act Rule concerning Telemedicine Electronic-Health (eHealth) Entities Rule Number: MSB 22-05-03-A Division / Contact / Phone: Health Programs Office / Russ Zigler / 303-866-5927 REGULATORY ANALYSIS 1. Describe the classes of persons who will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule. Colorado's Medicaid program covered health care services provided through telemedicine prior to the passage of House Bill 21-1256, so long as the services meet the same standard of care as an in-person visit and are delivered using HIPAA-compliant technology. As such, members should not see a difference in services rendered. Providers that qualify as eHealth Entities are impacted by the proposed rule and will benefit from the availability of this new provider type. 2. To the extent practicable, describe the probable quantitative and qualitative impact of the proposed rule, economic or otherwise, upon affected classes of persons. Providers that qualify as eHealth Entities benefit from the availability of this new provider type that is designed for their business model. 3. Discuss the probable costs to the Department and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues. Colorado's Medicaid program covered health care services provided through telemedicine prior to the passage of HB 21-1256, so long as the services meet the same standard of care as an in-person visit and are delivered using HIPAA-compliant technology. As such, the addition of e-Health Entities is anticipated to be budget neutral. 4. Compare the probable costs and benefits of the proposed rule to the probable costs and benefits of inaction. There are not anticipated costs to the Department for implementing the proposed rule, as telemedicine is already covered by Colorado Medicaid. The benefits of the rule are aligning Department rule with House Bill 21-1256 and creating a new provider type for provision of telemedicine services. The cost of inaction is misalignment between House Bill 21-1256 and Department rule. There are no benefits to inaction. 5. Determine whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule. There are no less costly methods or intrusive methods to align Department rule with House Bill 21-1256. 6. Describe any alternative methods for achieving the purpose for the proposed rule that were seriously considered by the Department and the reasons why they were rejected in favor of the proposed rule. There are no alternative methods for aligning Department rule with House Bill 21-1256. 8.095 Telemedicine 8.095.1.A DEFINITIONS 1. Electronic Health Entity (eHealth Entity) means a group practice that delivers services exclusively through telemedicine and is enrolled in a provider type that has an eHealth specialty. eHealth entities: a. Cannot be Primary Care Medical Providers; b. Can be either in-state or out-of-state. 2. Facilitated Visit means a Telemedicine visit where the rendering provider is at a distant site and the member is physically present with a support staff team member who can assist the provider with in-person activities. 3. HIPAA means the federal "Health Insurance Portability and Accountability Act of 1996", PUB. L. 104-191, as amended, which is incorporated herein by reference. Pursuant to C.R.S. § 24-4-103(12.5) (2022), the Department maintains copies of this incorporated text in its entirety, available for public inspection during regular business hours at: Colorado Department of Health Care Policy and Financing, 1570 Grant Street, Denver, CO 80203. Certified copies of incorporated materials are provided at cost upon request. 4. Primary Care Medical Provider (PCMP) means an individual physician, advanced practice nurse or physician assistant, who contracts with a Regional Accountable Entity (RAE) in the Accountable Care Collaborative (ACC), with a focus on primary care, general practice, internal medicine, pediatrics, geriatrics, or obstetrics and gynecology. 5. Telemedicine means the delivery of medical and health-care services and any diagnosis, consultation, or treatment using interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission). 8.095.2 CLIENT ELIGIBILITY 8.095.2.A. All Colorado Medicaid clients are eligible for medical and behavioral services delivered by telemedicine. 8.095.3 PROVIDER ELIGIBILITY 8.095.3.A. Any licensed provider enrolled with Colorado Medicaid is eligible to provide telemedicine services within the scope of the provider's practice. 8.095.3.B. Providers that meet the definition of an eHealth Entity shall enroll as the eHealth specialty. 8.095.4 COVERED SERVICES 8.095.4.A. Covered Telemedicine services must: 1. Meet the same standard of care as in-person care; 2. Be compliant with state and federal regulations regarding care coordination; 3. Be services the Department has approved for delivery through Telemedicine; 4. Be within the provider's scope of practice and for procedure codes the provider is already eligible to bill; 5. Be provided only where contact with the provider was initiated by the member for the services rendered; and 6. Be provided only after the member's consent, either verbal or written, to receive telemedicine services is documented. 8.095.4.B. eHealth Entities shall only provide: 1. Covered Telemedicine services, including Facilitated Visits. 8.095.5 PRIOR AUTHORIZATION REQUIREMENTS 8.095.5.A. The use of Telemedicine does not change prior authorization requirements for the underlying services provided. 8.095.6 RECORDKEEPING. 8.095.6.A. eHealth Entities must maintain a Release of Information in compliance with current HIPAA standards to facilitate communication with the member's PCMP. 8.095.7 REIMBURSEMENT 8.095.7.A Pursuant to C.R.S. § 25.5-5-320(2) (2022), the reimbursement rate for a Telemedicine service shall, as a minimum, be set at the same rate as the Colorado Medicaid rate for a comparable in-person service. 8.095.8 NON-COVERED SERVICES 8.095.8.A Services not otherwise covered by Colorado Medicaid are not covered when delivered through Telemedicine. 8.200 PHYSICIAN SERVICES 8.200.3. BENEFITS 8.200.3.B Physician services may be provided as telemedicine in accordance with Section 8.095. 8.200.3.C Services and goods generally excluded from coverage are identified in Section 8.011.11. 8.200.3.D Physician Services Note: 8.200.3.D.1 Podiatry Services was moved to §8.810 01/2015. 2. Speech - Language and Hearing Services c. ELIGIBLE PLACES OF SERVICE i. Eligible Places of Service shall include: 1. Office 2. Home 3. School A. Therapies provided as part of a member's school requirement are not separately reimbursable. These services are paid for by the school district which is reimbursed by the Department. Providers may not submit claims for therapy services performed as part of a member's school requirement. 4. FQHC 5. Outpatient Hospital 6. Community Based Organization 7. Telemedicine in accordance with Section 8.095. 8.520 HOME HEALTH SERVICES 8.520.4. Covered Services 8.520.4.B. Place of Service 1. Services shall be provided in the client's place of residence or one of the following places of service: a. Assisted Living Facilities (ALFs); b. Alternative Care Facilities (ACFs); c. Group Residential Services and Supports (GRSS) including host homes, apartments or homes where three or fewer clients reside. Services shall not duplicate those that are the contracted responsibility of the GRSS; d. Individual Residential Services and Supports (IRSS) including host homes, apartments or homes where three or fewer clients reside Services shall not duplicate those that are the contracted responsibility of the IRSS; or e. Hotels, or similar temporary accommodations while traveling, will be considered the temporary place of residence for purposes of this rule. f. Nothing in this section should be read to prohibit a client from receiving Home Health Services in any setting in which normal life activities take place, other than a hospital, nursing facility; intermediate care facility for individuals with intellectual disabilities; or any setting in which payment is or could be made under Medicaid for inpatient services that include room and board. g. Telemedicine may be provided in accordance with Section 8.095. 8.700 FEDERALLY QUALIFIED HEALTH CENTERS 8.700.1 DEFINITIONS 8.700.1.C. The visit definition includes interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission) encounters in accordance with Section 8.095. 1. Any health benefits provided through interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission) must meet the same standard of care as in-person care in accordance with Section 8.095. 8.730 FAMILY PLANNING SERVICES 8.730.3 Provider Eligibility 8.730.3.B. Eligible places of service include: 1. Office 2. Clinic 3. Public Health Agency 4. Home 5. School 6. School-based Health Center 7. Federally Qualified Health Center 8. Rural Health Center 9. Hospital 10. Ambulatory Surgery Center 11. Telemedicine may be provided in accordance with Section 8.095. 8.740 RURAL HEALTH CLINICS 8.740.1 DEFINITIONS Rural Health Clinic (RHC) means a clinic or center that: 1. Has been certified as a Rural Health Clinic under Medicare. 2. Is located in a rural area, which is an area that is not delineated as an urbanized area by the Bureau of the Census. 3. Has been designated by the Secretary of Health and Human Services as a Health Professional Shortage Area (HPSA) through the Colorado Department of Public Health and Environment. 4. Is not a rehabilitation facility or a facility primarily for the care and treatment of mental diseases. Visit means a face-to-face encounter, or an interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission) encounter in accordance with Section 8.095, between a clinic client and a health professional providing the services set forth in 8.740.4. Any health benefits provided through interactive audio, interactive video, or interactive data communication must meet the same standard of care as in-person care. 8.750 COMMUNITY MENTAL HEALTH CENTERS/CLINICS 8.750.3 COVERED SERVICES 8.750.3.B. Community Mental Health Centers/Clinics shall provide medically necessary rehabilitation services in an outpatient setting. Covered services shall include: 1. Case management services, including but not limited to: a. Service planning and program linkage. b. Referral recommendations. c. Monitoring and follow up. d. Client advocacy. e. Crisis management. 2. Group psychotherapy services shall be face-to-face, or interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission) in accordance with Section 8.095, services that are insight-oriented, behavior modifying, and that involve emotional interactions of the group members. Group psychotherapy services shall assist in providing relief from distress and behavior issues with other clients who have similar problems and who meet regularly with a practitioner. Any health benefits provided through interactive audio, interactive video, or interactive data communication must meet the same standard of care as in-person care 3. Individual psychotherapy services shall be face-to-face, or interactive audio (including but not limited to telephone and relay calls), interactive video (including but not limited to interactive audiovisual modalities), or interactive data communication (including but not limited to live chat and excluding text messaging, electronic mail, and facsimile transmission) in accordance with Section 8.095, services that are tailored to address the individual needs of the client. Services shall be insight-oriented, behavior modifying and/or supportive with the client in an office or outpatient facility setting. Individual psychotherapy services are limited to thirty-five visits per State fiscal year. Any health benefits provided through interactive audio, interactive video, or interactive data communication must meet the same standard of care as in-person care