SB 3
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Enrolled - Revised
Senate Bill 3 (Senator Griffith, et al.)
Finance Health and Government Operations
Preserve Telehealth Access Act of 2021
This bill expands the definitions of “telehealth” and the coverage and reimbursement
requirements for health care services provided through telehealth for both Medicaid and
private insurance. Insurers, nonprofit health service plans, and health maintenance
organizations (collectively known as carriers) must reimburse for a covered service
appropriately provided through telehealth, as specified. By December 1, 2022, the
Maryland Health Care Commission (MHCC) must submit a report on the impact of
providing telehealth services in accordance with the bill’s requirements. The bill takes
effect July 1, 2021; the bill’s insurance provisions apply to all policies, contracts, and
health benefit plans issued, delivered, or renewed in the State on or after that date.
Fiscal Summary
State Effect: Medicaid expenditures increase by $16.1 million (50% general funds,
50% federal funds) in FY 2022 and $32.2 million in FY 2023; federal fund revenues
increase accordingly. MHCC special fund expenditures increase by $550,000 in FY 2022
and 2023 combined for contractual services that must be funded with available monies (in
this case from fund balance). Minimal special fund revenue increase for the Maryland
Insurance Administration (MIA) in FY 2022 from the $125 rate and form filing fee; review
of filings requires contractual assistance in FY 2022 only (not shown below). Any impact
on the State Employee and Retiree Health and Welfare Benefits Program is not reflected.
This bill increases the cost of an entitlement program beginning in FY 2022.
($ in millions) FY 2022 FY 2023 FY 2024 FY 2025 FY 2026
FF Revenue $8.1 $16.1 - - -
GF Expenditure $8.1 $16.1 - - -
SF Expenditure $0.2 $0.4 $0 $0 $0
FF Expenditure $8.1 $16.1 - - -
Net Effect ($8.2) ($16.5) ($-) ($-) ($-)
Note:() = decrease; GF = general funds; FF = federal funds; SF = special funds; - = indeterminate increase; (-) = indeterminate decrease
Local Effect: Potential increase in expenditures for some local governments to continue
to reimburse for certain telehealth services. Revenues are not affected.
Small Business Effect: Meaningful.
Analysis
Bill Summary:
Medicaid
The bill repeals existing language regarding coverage of telemedicine, which is revised and
recodified in the bill’s new and expanded telehealth provisions.
“Telehealth” means the delivery of medically necessary somatic, dental, or behavioral
health services to a patient at an originating site by a distant site provider through the use
of technology-assisted communication.
“Telehealth” includes (1) synchronous and asynchronous interactions; (2) from
July 1, 2021, through June 30, 2023, an audio-only telephone conversation between a
health care provider and a patient that results in the delivery of a billable, covered health
care service; and (3) remote patient monitoring (RPM) services. “Telehealth” does not
include the provision of health care services solely through an audio-only telephone
conversation (with the exception of the temporary provision for fiscal 2022 and 2023), an
email message, or a facsimile transmission.
Medicaid must (1) provide health care services appropriately delivered through telehealth
to program recipients regardless of their location at the time telehealth services are
provided and (2) allow a “distant site provider” to provide health care services to a recipient
from any location at which the services may be appropriately delivered through telehealth.
Telehealth services provided to Medicaid recipients must include counseling and treatment
for substance use disorders (SUDs) and mental health conditions.
Medicaid may undertake utilization review to determine the appropriateness of any health
care service, whether delivered in person or through telehealth, if the appropriateness of
the health care service is determined in the same manner.
Medicaid may not (1) exclude from coverage a health care service solely because it is
provided through telehealth and not in person; (2) exclude from coverage a behavioral
health care service provided in person solely because the service may also be provided
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through telehealth; or (3) distinguish between program recipients in rural or urban locations
in providing coverage for health care services delivered through telehealth.
Medicaid must reimburse a health care provider for the diagnosis, consultation, and
treatment of a program recipient for a health care service that can be appropriately provided
through telehealth. Reimbursement is not required for a health care service that is not a
covered service or is delivered by an out-of-network provider (unless the service is an
authorized self-referred service).
From July 1, 2021, through June 30, 2023, Medicaid must provide reimbursement for
services appropriately provided through telehealth on the same basis and at the same rate
as if the health care service were delivered in person. Reimbursement does not include
(1) clinic facility fees, except as specified or (2) any room and board fees.
The Maryland Department of Health (MDH) may adopt regulations to carry out the bill
and may specify in regulation the types of health care providers eligible to receive
reimbursement for telehealth. Any such regulations must include all types of health care
providers that appropriately provide telehealth services.
Medicaid or a managed care organization may not impose as a condition of reimbursement
of a covered health care service delivered through telehealth that the health care service be
provided by a third-party vendor designated by Medicaid.
MDH must obtain any federal authority necessary to implement the bill, including applying
to the federal Centers for Medicare and Medicaid Services for an amendment to any of the
State’s § 1115 waivers or the State Plan.
By October 1, 2021, MDH must revise Medicaid telehealth regulations to ensure that
requirements for reimbursement of mental health and SUD services delivered through
telehealth comply with the federal Mental Health Parity and Addiction Equity Act.
Health Insurance
The definition of “telehealth” is expanded to include, from July 1, 2021, through
June 30, 2023, an audio-only telephone conversation between a health care provider and a
patient that results in the delivery of a billable, covered health care service.
The health care services appropriately delivered through telehealth must include
counseling and treatment for SUDs and mental health conditions.
A carrier must reimburse for health care services appropriately delivered through telehealth
regardless of the location of the patient at the time telehealth services are provided. A
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carrier may not exclude from coverage or deny coverage for a behavioral health care
service that is a covered benefit when provided in person solely because the behavioral
health care service may also be provided through a covered telehealth benefit.
From July 1, 2021, through June 30, 2023, a carrier must provide reimbursement for a
health care service appropriately provided through telehealth on the same basis and at the
same rate as if the health care service were delivered in person. Reimbursement does not
include (1) clinic facility fees, except as specified or (2) any room and board fees.
A carrier may not impose as a condition of reimbursement for a covered telehealth service
that the service be provided by a third-party vendor designated by the carrier.
Reporting Requirements
The bill repeals the requirement that MDH, by December 1, 2021, study and report on
whether SUD services may be appropriately provided through telehealth to a patient in the
patient’s home setting.
By December 1, 2022, MHCC, in consultation with specified entities, must submit a report
to the Senate Finance Committee and the House Health and Government Operations
Committee on the impact of providing telehealth services in accordance with the bill’s
requirements. The report must include (1) specified analyses; (2) a study of the alignment
of telehealth with new models of care; (3) an assessment of the efficiency and effectiveness
of telehealth services and in-person visits (including a survey of health care providers);
(4) an assessment of patient awareness of and satisfaction with telehealth coverage;
(5) specified reviews of the appropriateness of telehealth across the continuum of care,
inclusion of clinic hospital fees in telehealth reimbursement, and the use of telehealth to
satisfy network access standards; and (6) study or analysis of any other issues identified by
MHCC. MHCC must complete the report using research methods appropriate for the issues
identified and available funding.
The bill expresses the intent of the General Assembly that, until completion of the required
MHCC report, and no later than June 30, 2023, Medicaid and carriers must continue to
reimburse health care providers for covered health care services provided through
audio-only and audio-visual technology in accordance with the requirement of the bill and
other specified orders; for Medicaid, all applicable executive orders and waivers issued in
accordance with Chapters 13 and 14 of 2020, and for carriers, all applicable
accommodations made by carriers during the Declaration of State of Emergency and
Existence of a Catastrophic Health Emergency – COVID-19.
The bill also expresses legislative intent that (1) MHCC use the data collected from
utilization and coverage of telehealth during fiscal 2022 and 2023 (although the report is
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due December 1, 2022, only halfway through fiscal 2023) to complete the required report
and (2) the State use the report to establish comprehensive telehealth policies for
implementation after the Declaration of State of Emergency and Existence of a
Catastrophic Health Emergency – COVID-19 expires.
MIA must study (1) how telehealth can support efforts to ensure health care provider
network sufficiency and (2) the impact of changes in access to and coverage of telehealth
services under health benefit plans offered by carriers on the ability of consumers to choose
in-person care versus telehealth care. MIA must provide any findings and
recommendations to MHCC for inclusion in the MHCC report due December 1, 2022, and
consider the requirements of the bill when proposing any revisions to regulations relating
to network adequacy.
Current Law:
Medicaid and Telehealth
Under § 15-103 of the Health-General Article, subject to the limitations of the State budget,
Medicaid must provide mental health services appropriately delivered through telehealth
to a patient in the patient’s home setting. “Telehealth” does not include the provision of
health care services solely through audio-only telephone calls, electronic mail messages,
or facsimile transmissions.
Under § 15-105.2 of the Health-General Article, to the extent authorized by federal law or
regulation, coverage of and reimbursement for health care services delivered through
telemedicine must apply to Medicaid and managed care organizations in the same manner
they apply to carriers. Subject to the limitations of the State budget and to the extent
authorized by federal law, MDH may authorize coverage of and reimbursement for health
care services that are delivered through store-and-forward technology or RPM.
MDH may specify by regulation the types of health care providers eligible to receive
reimbursement for telemedicine health care services provided to Medicaid recipients. If
MDH does so, the types of providers must include primary care providers, and psychiatrists
and psychiatric nurse practitioners who provide Assertive Community Treatment or mobile
treatment services to Medicaid recipients in a home or community-based setting.
All Medicaid participants are eligible to receive telehealth services. Telehealth services are
subject to the same program restrictions, requirements, and other limitations as services
provided in person. Telehealth providers must be enrolled as a Medicaid provider to be
reimbursed; however, certain originating site providers may participate even though they
are not eligible to enroll as a Medicaid provider. Medicaid allows all distant site provider
types to participate and provides coverage for RPM for chronic conditions.
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Private Insurance Coverage and Telehealth
“Telehealth” means the use of interactive audio, video, or other telecommunications or
electronic technology by a licensed health care provider to deliver a health care service at
a location other than the location of the patient. “Telehealth” does not include audio-only
telephone calls, electronic mail messages, or facsimile transmissions.
Carriers must provide coverage under a health insurance policy or contract for health care
services appropriately delivered through telehealth (including counseling for substance use
disorders). Carriers may not exclude from coverage a health care service solely because it
is provided through telehealth and is not provided through an in-person consultation or
contact between a health care provider and a patient.
A carrier must reimburse a health care provider for a covered service provided through
telehealth. A carrier is not required to reimburse a health care provider who is not a covered
provider under the health insurance policy or contract.
A carrier may impose a deductible, copayment, or coinsurance amount on benefits for
health care services delivered either through an in-person consultation or through
telehealth. A decision by a carrier not to provide coverage for telehealth constitutes an
adverse decision.
Telehealth Coverage during COVID-19
Emergency legislation, Chapters 13 and 14 of 2020, authorized the Governor, for the
duration of the COVID-19 public health emergency (PHE) to, among other things,
establish or waive telehealth protocols and order MDH to reimburse certain Medicaid
telehealth services for COVID-19 patients.
Executive orders from the Governor and waivers from federal requirements increased
Medicaid coverage for telehealth services, while the federal Coronavirus Aid, Relief, and
Economic Security Act and federal regulatory changes increased Medicare coverage.
Expanded coverage includes coverage for telehealth services (1) originating at a
participant’s home or other secure location; (2) delivered by audio-only technology,
including by phone; and (3) delivered by technology that is not compliant with the federal
Health Insurance Portability and Accountability Act (HIPAA). These expansions will
terminate with the end of COVID-19 emergency orders unless extended through additional
executive orders or legislation.
While State and federal law exclude audio-only (telephone call) telehealth visits from
insurance coverage, these visits are currently covered under federal and State emergency
health declarations. Carriers have expanded telehealth coverage to additional systems and
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platforms, additional provider and service types, and telephone-only consultations.
Additionally, carriers have waived cost-sharing for telehealth visits and provided
reimbursement parity between virtual and in-person consultations. Accommodations have
varied by carrier, however, and carriers have indicated that some expanded coverage will
be terminated or reduced at the end of the federal and State PHEs.
State Fiscal Effect:
Audio-only Services for Dual-eligibles
Medicaid provides coverage for individuals who are dually eligible for both Medicare and
Medicaid (dual-eligibles). During the PHE, Medicare has covered audio-only telehealth
through waivers. However, this coverage is set to expire at the end of calendar 2021, as
Medicare is prohibited from covering a service that can be a substitute for an in-person
visit after the pandemic. In the absence of Congressional action to make Medicare coverage
for audio-only telehealth permanent, Medicaid must cover the full cost of any services
delivered to dual-eligibles that are not covered by Medicare.
Thus, to the extent Medicare coverage of audio-only telehealth coverage ends, Medicaid
expenditures increase by an estimated $16.1 million (50% general funds, 50% federal
funds) in fiscal 2022 to cover 100% of the cost of audio-only telehealth services for
dual-eligibles (rather than 20%) effective January 1, 2022. Federal fund revenues increase
accordingly. This estimate is based on the following information and assumptions:
 As Medicare is currently covering audio-only services, data is not available from
the period of the PHE to specifically estimate potential costs; thus, a proxy is used.
 The total annual cost for services to dual-eligibles (including behavioral and somatic
health services) that could be delivered via audio-only telehealth are estimated at
$805.3 million (this excludes inpatient services and other expenditures unlikely to
be provided via audio-only).
 Approximately 5% of these services will be provided via audio-only and are
estimated to cost 5% of the total for all services ($40.3 million).
 Medicaid currently pays 20% of Medicare services ($8.1 million).
 Thus, Medicaid incurs an additional 80% of these costs ($32.2 million), as Medicare