The Division of Workers’ Compensation Takes a Novel Approach to Telemedicine and Telehealth Services in Response to the Novel Coronavirus—COVID-19
In the midst of the COVID-19 pandemic, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) has continued to quickly respond and adapt to a continually-evolving situation. 28 Texas Administrative Code §167.1 has been adopted on an emergency basis with an immediate effective date under Labor Code §§402.061, 402.00111, and 413.011; Insurance Code §1305.003 and 1305.153; and Government Code §2001.034 and 2001.036(a)(2).
Adopted on April 13, 2020, the new 28 Texas Administrative Code §167.1 creates an exception to CMS distance site practitioner requirements of existing telemedicine and telehealth rules.. It allows healthcare providers licensed to perform physical medicine and rehabilitation services, including: physical therapist, occupational therapist, and speech pathologists, to bill and be reimbursed for services currently allowed under CMS telemedicine and telehealth billing codes. These healthcare providers are able to continue their same billing, coding, reporting, and documentation requirements, used for in-person services, in a telemedicine setting by now including the place of service code as “02- telehealth” on the bill.
Texas Workers’ Compensation already allows for billing and reimbursement of certain telemedicine and telehealth services when they are available as an alternative to office-based healthcare. 28 Texas Administrative Code §133.30 provides healthcare provider procedures for billing and reimbursement of certain telemedicine and telehealth services in the Texas Worker’s Compensation system. These reimbursement rates have been set and determined based on network contracts; or for non-network claims, 28 Texas Administrative Code §134.203 has provided the rates and procedures to be used for billing and reimbursement. An originating site facility fee is not eligible for reimbursement under these rules. Medicare payment policies and provisions adopted by the Division of Worker’s Compensation do not allow or pay for a full array of physical medicine and rehabilitation services that utilize delivery through telemedicine or telehealth services. Medicare also does not currently reimburse for asynchronous telemedicine services. Healthcare providers must bill for services according to Medicare payment policies and provisions in chapters 133 and 134.
Using Government Code §§ 2001.034 and 2001.036 (a) (2), the Division of Workers’ Compensation reasoned COVID-19 met the requirements to adopt a rule on an emergency basis. Under Government Code §2001.034, a state agency may adopt an emergency rule without prior notice or hearing if the agency finds that an imminent peril to public health, safety, or welfare requires adoption of a rule in fewer than 30 days’ notice. Any rule adopted utilizing §2001.034 may not be in effect for more than 120 days but may be extended 60 days. Government Code §2001.036(a)(2) provides that if a state agency finds that an expedited effective date is necessary because of imminent peril to public health, safety, or welfare, and subject to applicable constitutional or statutory provisions, any rule will be effective immediately on filing with the Secretary of State or on a stated date less than 20 days after the filing date.
Following Governor Abbott’s declaration of disaster regarding COVID-19 on March 13, 2020, the Division believes COVID-19 has posed an imminent peril to public health, safety, or welfare and will require rules to be adopted with fewer than 30 days’ notice. By adopting 28 TAC §167.1, the Division seeks to mitigate the spread of the virus by eliminating some of the existing barriers on telemedicine and telehealth. They believe telemedicine and telehealth services will help encourage social distancing and still allow injured employees to continue to receive necessary care that will enable them to return to work while also preventing in-person contact with healthcare providers.
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