Legal Bulletins

Q: In addition to the executive orders signed by Governor Hogan to broaden the use of telehealth during the COVID-19 pandemic (Pandemic), have new telehealth laws been put into place?

A: Yes. On April 3, 2020, Governor Hogan signed two new bills into law related to telehealth: 1) a law related to telehealth generally and 2) a telehealth bill related to mental health and chronic conditions. Even prior to the Pandemic, health care providers pushed for expanded access to telehealth for patients and the 2020 General Assembly passed responsive legislation.

Q: What is the Telehealth Shortage Bill?

A: This law will expand the use of telehealth in Maryland even after the Pandemic is over. Health care practitioners will be able to establish new patient relationships through telehealth using real-time communication, known as “synchronous telehealth,” or information exchanged between provider and patient that does not occur in real time, “including the secure collection and transmission of a patient’s medical information, clinical data, clinical images, laboratory results, and self-reported medical history,” known as “asynchronous telehealth.” Under this law, telehealth does not include audio-only calls, e-mails or data sent via fax.

Patients will need to provide oral or written consent to receive care in this medium. Providers will need to think carefully about which patients can be evaluated and treated through telehealth as providers will be held to the same standards of practice applicable to in-person health care.

Q: Are there any licensing restrictions under the new Telehealth Shortage Bill?

A: Yes, to provide care for patients in Maryland via telehealth, the health care provider must be licensed or otherwise authorized to practice health care in Maryland. However, the law orders Governor Hogan to work with neighboring states to develop a compact to allow interstate telehealth when there are provider shortages.

Q: Under the new law, will providers be able to prescribe opiates for pain via telehealth?

A: Only in very limited circumstances. To receive a prescription to treat pain with opiates via telehealth, the patient must be in a health care facility unless the governor has declared a state of emergency due to a catastrophic health emergency, such as the present Pandemic. Providers will also still be limited by any other applicable regulation or limitation under federal and state law related to prescribing controlled dangerous substances.

Q: Did the governor sign legislation into law related specifically to mental health and the management of chronic conditions?

A: Yes. Under the second law, Maryland Medicaid will now cover mental health services via telehealth provided to patients in their homes. In this case, telehealth means care delivered to patients through interactive audio and video platforms for the diagnosis, consultation and treatment for mental health conditions. Unless waived in an emergency situation, such as the current Pandemic, providers would not be able to use audio-only telephone conversations or electronic mail messages (i.e. email) to deliver care under this law.

Q: Do the new telehealth laws extend to substance use disorder services?

A: No. The mental health telehealth services available under this new law do not extend to substance use disorder services for Maryland Medicaid patients. However, the law does require that the Maryland Department of Health (Department) determine if there are substance use services that could appropriately be provided to patients in their home via telehealth. The Department is required to report its findings to the General Assembly by December 1, 2020.

Q: Does the new telehealth law require Maryland Medicaid to cover the management of chronic conditions via telehealth?

A: No. However, the law also requires that by December 1, 2020, the State must apply to the Centers for Medicare and Medicaid Services (CMS) for a waiver that would allow Maryland to implement a pilot program until 2025, allowing Maryland Medicaid patients to receive telehealth services wherever they are, including their home, exclusively for the management of chronic health conditions.

Q: What is the difference between Governor Hogan’s recent executive orders on telehealth and these pieces of legislation?

A: These bills were passed by the Maryland General Assembly during the 2020 legislative session and sent to Governor Hogan for signature. Typically, there is a delay between when Governor Hogan signs legislation, the final step in a bill becoming a law and when the law goes into effect. However, both of these telehealth bills were written as emergency bills, meaning they go into effect immediately now that they have been signed. The effect of these laws will extend beyond the Pandemic.

In contrast to these two permanent laws, Governor Hogan’s prior executive orders are temporary responses to the Pandemic. He declared a state of emergency on March 5, 2020, and subsequently used his authority as governor to issue several executive orders to address immediate needs for telehealth created by the Pandemic. These orders greatly relaxed telehealth requirements, well beyond what is allowed under the new laws, but this flexibility will end when the state of emergency is over and the provisions in these laws will govern telehealth moving forward.

Please contact the Gordon Feinblatt Health Care team if you have questions about how the current status of any regulations or executive orders impacts your practice.

Barry F. Rosen
410-576-4224 • brosen@gfrlaw.com

Alexandria K. Montanio
410-576-4278 • amontanio@gfrlaw.com

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