Bill Summary – FastDemocracy

The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                        Prepared By: The Professional Staff of the Committee on Health Policy
BILL:           SB 852
INTRODUCER:     Senator Brodeur
SUBJECT:        Medicaid Modernization
DATE:           March 16, 2021                  REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Smith                            Brown                                 HP              Favorable
2.                                                                       AHS
3.                                                                        AP
  I.    Summary:
        SB 852 authorizes the Agency for Health Care Administration (AHCA) to reimburse for remote
        patient monitoring and store-and-forward services as optional services in the Florida Medicaid
        program, subject to specific appropriations. If the services are rendered, the bill would have a
        minor operational and indeterminate fiscal impact on Florida Medicaid. See section V of this
        analysis.
        The bill provides an effective date of July 1, 2021.
 II.    Present Situation:
        Telehealth
        Relevant Terminology
        Section 456.47, F.S., defines the term “telehealth” as the use of synchronous or asynchronous
        telecommunications technology by a telehealth provider to provide health care services,
        including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a
        patient; transfer of medical data; patient and professional health-related education; public health
        services; and health administration. The term does not include audio-only telephone calls, e-mail
        messages, or facsimile transmissions.
        “Synchronous” telehealth refers to the live, real-time, or interactive transmission of information
        between a patient and a health care provider during the same time period. The use of live video
        to evaluate and diagnosis a patient would be considered synchronous telehealth.
        “Asynchronous” telehealth refers to the transfer of data between a patient and a health care
        provider over a period of time and typically in separate time frames. This is commonly referred
        to as “store-and-forward.”
BILL:   SB 852                                                                                                              Page 2
         Store-and-forward allows for the electronic transmission of medical information, such as digital
         images, documents, and pre-recorded videos through telecommunications technology to a
         practitioner, usually a specialist, who uses the information to evaluate the case or render a
         service after the data has been collected.1 The transfer of X-rays or MRI images from one health
         care provider to another health care provider for review in the future would be considered
         asynchronous telehealth through store-and-forward technology.
         “Remote patient monitoring” refers to the collection, transmission, evaluation, and
         communication of individual health data to a health care provider from the patient’s location
         through technology such as wireless devices, wearable sensors, implanted health monitors,
         smartphones, and mobile apps.2 Remote monitoring is used to monitor physiologic parameters,
         including weight, blood pressure, blood glucose, pulse, temperature, oximetry, respiratory flow
         rate, and more. Remote monitoring can be useful for ongoing condition monitoring and chronic
         disease management. Depending upon the patient’s needs, remote monitoring can be
         synchronous or asynchronous.
         Florida Telehealth Providers
         In 2019, the Legislature passed and the Governor approved CS/CS/HB 23, which created section
         456.47, F.S. The bill became effective on July 1, 2019.3 It authorized Florida-licensed health care
         providers4 to use telehealth to deliver health care services within their respective scopes of
         practice.
         The bill also authorized out-of-state health care providers to use telehealth to deliver health care
         services to Florida patients if they register with the Department of Health (DOH) or the
         applicable board5 and meet certain eligibility requirements.6 A registered out-of-state telehealth
         provider may use telehealth, within the relevant scope of practice established by Florida law and
         rule, to provide health care services to Florida patients but is prohibited from opening an office
         in Florida and from providing in-person health care services to patients located in Florida.
         Telehealth providers who treat patients located in Florida must be one of the licensed health care
         practitioners listed below7 and be either Florida-licensed, licensed under a multi-state health care
         licensure compact of which Florida is a member state, or registered as an out-of-state telehealth
         provider:
          Behavioral Analyst
          Acupuncturist
1
  Center for Connected Health Policy, National Telehealth Policy Resource Center, Store-and-Forward (Asynchronous)
available at https://www.cchpca.org/about/about-telehealth/store-and-forward-asynchronous (last visited Feb. 13, 2021).
3
  Chapter 2019-137, s. 6, Laws of Fla.
3
  Chapter 2019-137, s. 6, Laws of Fla.
4
  Section 467.47(1)(b), F.S.
5
  Under s. 456.001(1), F.S., the term “board” is defined as any board, commission, or other statutorily created entity, to the
extent such entity is authorized to exercise regulatory or rulemaking functions within the DOH or, in some cases, within the
DOH’s Division of Medical Quality Assurance.
6
  Section 467.47(4), F.S.
7
  Section 467.47(1)(b), F.S. These are professionals licensed under s. 393.17; part III, ch. 401; ch. 457; ch. 458; ch. 459; ch.
460; ch. 461; ch. 463; ch. 464; ch. 465; ch. 466; ch. 467; part I, part III, part IV, part V, part X, part XIII, and part XIV, ch.
468; ch. 478; ch. 480; part II and part III, ch. 483; ch. 484; ch. 486; ch. 490; or ch. 491.
BILL:   SB 852                                                                                                       Page 3
            Allopathic physician
            Osteopathic physician
            Chiropractor
            Podiatrist
            Optometrist
            Nurse
            Pharmacist
            Dentist
            Dental Hygienist
            Midwife
            Speech Therapist
            Occupational Therapist
            Radiology Technician
            Electrologist
            Orthotist
            Pedorthist
            Prosthetist
            Medical Physicist
            Emergency Medical Technician
            Paramedic
            Massage Therapist
            Optician
            Hearing Aid Specialist
            Clinical Laboratory Personnel
            Respiratory Therapist
            Psychologist
            Psychotherapist
            Dietician/Nutritionist
            Athletic Trainer
            Clinical Social Worker
            Marriage and Family Therapist
            Mental Health Counselor
         The Legislature also passed HB 7067 in 2019 that would have required an out-of-state telehealth
         provider to pay an initial registration fee of $150 and a biennial registration renewal fee of $150,
         but the bill was vetoed by the Governor and did not become law.8
         On March 16, 2020, Surgeon General Scott Rivkees executed DOH Emergency Order 20-002
         authorizing certain out-of-state physicians, osteopathic physicians, physician assistants, and
         advanced practice registered nurses to provide telehealth in Florida without the need to register
8
 Transmittal Letter from Governor Ron DeSantis to Secretary of State Laurel Lee (June 27, 2019) available at
https://www.flgov.com/wp-content/uploads/2019/06/06.27.2019-Transmittal-Letter-3.pdf (last visited Feb. 14, 2021).
BILL:   SB 852                                                                                                   Page 4
         as a telehealth provider under s. 456.47(4), F.S.9 This emergency order was extended10 and will
         remain in effect until the expiration of the Governor’s Executive Order No. 20-52 and extensions
         thereof.11
         Five days later, the Surgeon General executed DOH Emergency Order 20-00312 to also authorize
         certain out-of-state clinical social workers, marriage and family therapists, mental health
         counselors, and psychologists to provide telehealth in Florida without the need to register as a
         telehealth provider under s. 456.47(4), F.S. This emergency order was also extended13 and will
         remain in effect until the expiration of Executive Order No. 20-52 and extensions thereof.
         Florida Medicaid Program
         The Medicaid program is a joint federal-state program that finances health coverage for
         individuals, including eligible low-income adults, children, pregnant women, elderly adults and
         persons with disabilities.14 The Centers for Medicare & Medicaid Services (CMS) within the
         U.S. Department of Health and Human Services (HHS) is responsible for administering the
         federal Medicaid program. Florida Medicaid is the health care safety net for low-income
         Floridians. Florida’s program is administered by the AHCA and financed through state and
         federal funds.15
         A Medicaid state plan is an agreement between a state and the federal government describing
         how the state administers its Medicaid programs. The state plan establishes groups of individuals
         covered under the Medicaid program, services that are provided, payment methodologies, and
         other administrative and organizational requirements.
         In order to participate in Medicaid, federal law requires states to cover certain population groups
         (mandatory eligibility groups) and gives states the flexibility to cover other population groups
         (optional eligibility groups). States set individual eligibility criteria within federal minimum
         standards. The AHCA may seek an amendment to the state plan as necessary to comply with
9
  Department of Health, State of Florida, Emergency Order DOH No. 20-002 (Mar. 16, 2020) available at
http://floridahealthcovid19.gov/wp-content/uploads/2020/03/filed-eo-doh-no.-20-002-medical-professionals-03.16.2020.pdf
(last visited Feb. 14, 2021).
10
   Department of Health, State of Florida, Emergency Order DOH No. 20-011 (June 30, 2020) available at
https://floridahealthcovid19.gov/wp-content/uploads/2020/06/DOH-Emergency-Order-DOH-No.-20-011.pdf (last visited
Feb. 14, 2021).
11
   Under s. 252.36(2), F.S., no state of emergency declared pursuant to the Florida Emergency Management Act, may
continue for more than 60 days unless renewed by the Governor. The state of emergency declared in Executive Order 20-52,
was extended by Executive Orders 20-114, 20- 166, 20-192, 20-213, 20-276, 20-316, and 21-45. Executive Order 21-45 will
remain in effect until Apr. 27, 2021. Office of the Governor, State of Florida, Executive Order 20-316 (Dec. 29, 2020)
available at https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-316.pdf (last visited Feb. 9, 2021).
12
   Department of Health, State of Florida, Emergency Order DOH No. 20-003 (Mar. 21, 2020) available at
https://s33330.pcdn.co/wp-content/uploads/2020/03/DOH-EO-20-003-3.21.2020.pdf (last visited Feb. 14, 2021).
13
   Department of Health, State of Florida, Emergency Order DOH No. 20-005 (Apr. 21, 2020) available at
https://s33330.pcdn.co/wp-content/uploads/2020/04/DOH-Emergency-Order-20-005-extending-20-003.pdf (last visited Feb.
14, 2021).
14
   Medicaid.gov, Medicaid, available at https://www.medicaid.gov/medicaid/index.html (last visited Mar. 3, 2021).
15
   Section 20.42, F.S.
BILL:   SB 852                                                                                                 Page 5
         federal or state laws or to implement program changes. States send state plan amendments to the
         federal CMS for review and approval.16
         Medicaid enrollees generally receive benefits through one of two service-delivery systems: fee-
         for-service (FFS) or managed care. Under FFS, health care providers are paid by the state
         Medicaid program for each service provided to a Medicaid enrollee. Under managed care, the
         AHCA contracts with private managed care plans for the coordination and payment of services
         for Medicaid enrollees. The state pays the managed care plans a capitation payment, or fixed
         monthly payment, per recipient enrolled in the managed care plan.
         In Florida, the majority of Medicaid recipients receive their services through a managed care
         plan contracted with the AHCA under the Statewide Medicaid Managed Care (SMMC)
         program.17 The SMMC program has two components, the Managed Medical Assistance (MMA)
         program and the Long-term Care program. Florida’s SMMC offers a health care package
         covering both acute and long-term care.18 The SMMC benefits are authorized by federal
         authority and are specifically required in ss. 409.973 and 409.98, F.S.
         The AHCA contracts with managed care plans on a regional basis to provide services to eligible
         recipients. The MMA program, which covers most medical and acute care services for managed
         care plan enrollees, was fully implemented in August 2014, and was re-procured for a period
         beginning December 2018 and ending in 2023.19
         Medical Necessity Requirements
         Florida Medicaid covers services that are medically necessary, as defined in its Medicaid state
         plan pursuant to Rule 59G-1.010 of the Florida Administrative Code. The AHCA routinely
         reviews new health services, products, and supplies to assess potential coverage under Florida
         Medicaid which depends on whether that service, product, or supply is medically necessary.20
         Pursuant to Rule 59G-1.010 of the Florida Administrative Code care, goods, and services are
         medically necessary if they are:
          Necessary to protect life, to prevent significant illness or significant disability, or to alleviate
             severe pain;
          Individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness
             or injury under treatment, and not in excess of the patient’s needs;
          Consistent with generally accepted professional medical standards as determined by the
             Medicaid program, and not experimental or investigational;
          Reflective of the level of service that can be safely furnished, and for which no equally
             effective and more conservative or less costly treatment is available statewide; and
          Furnished in a manner not primarily intended for the convenience of the recipient, the
             recipient’s caretaker, or the provider.
16
   Medicaid.gov, Medicaid State Plan Amendments, available at https://www.medicaid.gov/medicaid/medicaid-state-plan-
amendments/index.html (last visited Mar. 3, 2021).
17
   Id.
18
   Id.
19
   Id.
20
   Supra note 6.
BILL:   SB 852                                                                                                     Page 6
         Telemedicine Coverage under the Florida Medicaid Program
         Florida Medicaid covers telemedicine in both the managed care and fee-for-service delivery
         systems.
         Medicaid health plans have broad flexibility in covering telemedicine services.21 In the 2018
         negotiations for the re-procurement of Medicaid health plan contracts, health plans agreed to
         cover additional telemedicine modalities at no cost to the state, including remote patient
         monitoring and store-and-forward services.22 Services provided through these additional
         telemedicine modalities are not included in the capitation rates the AHCA pays to the plans.23
         Medicaid health plans are required to cover telemedicine services in “parity” with face-to-face
         services, meaning the health plan must cover services via telemedicine in a manner no more
         restrictive than the health plan would cover the service face-to-face.24 For example, a health plan
         may not require the prior authorization of a service delivered via telemedicine if it does not
         require prior authorization of that service delivered face-to-face.25
         Under the fee-for service delivery system and in times of non-emergency, Florida Medicaid
         generally reimburses only for synchronous telemedicine services provided through the use of
         audio-visual equipment.26 On March 18, 2020, the AHCA issued a Florida Medicaid Health Care
         Alert to provide telemedicine guidance for all medical and behavioral health care providers
         during the COVID-19 public health emergency.27 Throughout the duration of the state of
         emergency, the AHCA has expanded telehealth to include and provide for the reimbursement of
         certain store-and-forward and remote patient monitoring modalities rendered by licensed
         physicians, APRNs, and PAs functioning within their scope of practice.28 The AHCA has also
         expanded services provided through telemedicine that may be reimbursed under the FFS delivery
         system to include certain therapies, medication management, behavioral health, and medication-
         assisted treatment services.29
21
   Agency for Health Care Administration, Florida Medicaid Health Care Alert, Medicaid Telemedicine Guidance for
Medical and Behavioral Health Providers (Mar. 18, 2020) available at
https://ahca.myflorida.com/Medicaid/pdffiles/provider_alerts/2020_03/Medicaid_Telemedicine_G