Connecticut Governor Ned Lamont recently issued four new executive orders to address the COVID-19 state of emergency (Executive Orders 7CC – 7FF) that contain provisions relevant to health care providers and facilities in the state. Among other things, the Executive Orders (i) expand access to telehealth services, (ii) expand the available health care workforce, (iii) increase current reporting requirements for long-term care facilities, (iv) allow the Commissioner of the Department of Social Services (DSS) to scale back certain Medicaid program requirements, and (v) update requirements related to out-of-network emergency billing. A summary of particularly significant changes contained in those Orders follows.
I. Expansion of Access to Telehealth Services
Executive Orders 7DD, issued on April 22, 2020, and 7FF, issued on April 24, 2020, collectively expand access to telehealth services in the state by (1) allowing licensed dentists, behavior analysts, genetic counselors, music therapists, art therapists and veterinarians to provide telehealth services in the state, and (2) enabling new, as well as established, Medicaid and commercially-insured patients to obtain telehealth services via audio-only telephone.
Executive Order 7DD expands the types of providers eligible to furnish telehealth services to include those licensed professionals listed above, and updates the expansion of telehealth services contained in Executive Order 7G (read our analysis of that Order here). Executive Order 7G allowed audio-only telephones to be used to provide telehealth services to established patients enrolled in Medicaid or a fully-insured commercial health plan. Executive Order 7DD allows for audio-only telehealth services to be provided to any patient in a fully-insured commercial health plan, regardless of whether a prior provider-patient relationship exists, and Executive Order 7FF allows new – as well as established – Medicaid patients to obtain audio‑only telehealth services from Medicaid-enrolled providers.
Executive Order 7DD also re-implements other provisions of Executive Order 7G concerning telehealth, including:
- a provider who elects to provide telehealth services for a patient who is not a Medicaid beneficiary or covered by a fully-insured commercial plan must determine if the patient is covered by other insurance that provides coverage for telehealth services and either (i) accept the reimbursement received under such other insurance or (ii) if payment or coverage for telehealth services is not available under other insurance or the patient is uninsured, accept the amount that Medicare reimburses for such services as payment in full and, if the patient is uninsured or unable to pay for such services, offer the patient financial assistance in accordance with applicable law;
- the waiver of state licensure, certification and registration requirements for Medicaid-enrolled providers and in-network providers for commercial fully-insured plans providing telehealth services to patients;
- expansion of the types of telehealth technologies that may be used (consistent with federal guidance) by providers in the state; and
- the waiver of regulatory requirements obligating providers to furnish telehealth services from a licensed facility.
Medicaid-enrolled providers in Connecticut would also be well-advised to review the Provider Bulletins on telehealth services in the state issued by DSS. On April 16, 2020, DSS issued Provider Bulletin 20-38, which builds on prior DSS guidance to expand the types of providers authorized by DSS to render synchronized telemedicine (i.e., audio and visual) and telephonic (audio-only) services to Medicaid beneficiaries. Specifically:
- school based health centers enrolled in Medicaid as free-standing clinics (and not operated by a parent organization) are permitted to render synchronized telemedicine and telephonic services;
- family planning clinics are authorized to furnish synchronized telemedicine (in addition to already being allowed to furnish telephonic services); and
- local health departments are permitted to utilize synchronized telemedicine for certain “TB related services” billed under codes 99202, 99212, G0493, G0494 and G9012.
The Provider Bulletin also lists additional procedure codes that may be performed as telemedicine services.
The Provider Bulletin notes that all providers must follow the DSS’ published guidelines related to the provision of telemedicine and telephonic services. DSS reminds Medicaid providers to regularly check its FAQs about the COVID-19 response (available here) for the most up-to-date guidance.
II. Health Care Workforce Expansion
In parallel with its expansion of access to telehealth services, Executive Order 7DD further expands the Connecticut health care workforce by:
- Authorizing the Commissioner of Public Health to issue an order to suspend, for a period not to exceed 60 consecutive days, the requirements for licensure, certification or registration of the following professions: occupational therapist, alcohol and drug counselor, radiographer, radiologic technologist, radiologist assistant and nuclear medicine technologist, dentist, dental hygienist, behavior analyst, genetic counselor, music therapist, art therapist, dietician-nutritionist, and speech and language pathologist.
- Allowing a person to participate in an intern or resident physician program or United States Medical Officer candidate training program prior to issuance of a permit by the Department of Public Health, as long as the hospital administrator documents that the person satisfies the requirements for such a permit under Connecticut law.
- Allowing a person to participate in a resident physician assistant program in a short-term hospital that provides a postgraduate medical education program accredited by the Accreditation Council for Graduate Medical Education, without a license or temporary permit or a training permit issued by the Department of Public Health, as long as the hospital administrator documents that the person is to be appointed a resident physician assistant in the hospital and satisfies certain requirements under Connecticut law.
- Temporarily suspending the supervision requirements for a physician assistant (PA) authorized to practice in the State of Connecticut related to personal and regular review of the PA’s practice, chart/record review of the PA’s practice, and delineation of a predetermined emergency plan.
- Temporarily suspending the requirement that a physician be physically present when medically directing the prescriptive activity of an advanced practice registered nurse who is prescribing and administering medical therapeutics during surgery.
- Allowing a respiratory care therapist student or a respiratory care technician student to provide services in accordance with the requirements of Section 20-162q(c) of the Connecticut General Statutes except that the services are not required to be a component of such person’s course of study.
- Suspending continuing education requirements for certain licensed professionals in Connecticut, including without limitation physicians/surgeons, nurses, naturopaths, physical or occupational therapists, optometrists, psychologists, veterinarians and other licensees for a period of one (1) year (if the profession’s requirements must be met annually) or six (6) months (for all other professions). The continuing education requirements are suspended for the continuing education year in which March 10, 2020 lies for a covered professional.
III. Reporting Requirements for Nursing Homes and Residential Communities
Executive Order 7EE, issued on April 23, 2020, creates mandatory reporting requirements for nursing homes and residential communities in the state. The Order requires all nursing homes and managed residential communities operating in the state to participate in and provide daily status reports in the form and manner requested by the Connecticut Hospital and Long Term Care Mutual Aid Plan (LTC MAP), and provides for civil penalties for noncompliance.
IV. Medicaid Waivers
Executive Order 7EE also allows DSS to waive certain Medicaid requirements as necessary for purposes of the COVID-19 response efforts. The Order:
- Authorizes DSS to temporarily waive, suspend or modify, to the extent the DSS Commissioner deems necessary, any prior authorization and other utilization review requirements.
- Authorizes DSS to temporarily waive, suspend or modify, to the extent the DSS Commissioner deems necessary, (1) requirements related to per-day “bed reservation” payments to Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IIDs) for individuals residing in the ICF/IID who are on home leave or hospitalized, and (2) related requirements for ICF/IIDs with individuals on home leave or hospitalized, including, but not limited to, waiving the maximum day limit for the length of such home leave or hospitalization.
- Authorizes DSS to temporarily waive, suspend or modify, to the extent the DSS Commissioner deems necessary, requirements for providers of medical equipment, devices, and supplies to obtain a signed delivery receipt from the Medicaid member as a condition of payment.
V. Out-of-Network Emergency Services
Executive Order 7CC, issued April 21, 2020, repeals Sections 2(a) and 2(b) of Executive Order 7U, which had required health carriers to reimburse out-of-network health care providers who provide emergency services to an insured in an amount equivalent to the amount the insured’s health care plan would pay if rendered by an in-network health care provider as payment in full (see here for our analysis of that Order). Based on the introductory clauses of Executive Order 7CC, this change is intended to align with the federal CARES Act Provider Relief Fund, which “has protected such patients” by requiring health care providers receiving payments from that Fund to agree “to charge patients for all care related to a possible or actual case of COVID‑19 no more than what the patient would have otherwise been required to pay if the care had been provided by an in-network health care provider.”
Presumably subject to the conditions applicable to providers who receive payments from the CARES Act Provider Relief Fund, this repeal restores Sections 38a-477aa(b)(3)(A) and 38a-477aa(b)(3)(B) of the Connecticut General Statutes to their language as in effect prior to the issuance of Executive Order 7U on April 5.
This post was co-authored by Michael Lisitano, legal intern at Robinson+Cole. Michael is not yet admitted to practice law.