I love Westerns, but my wife hates them with a passion hotter than the Arizona sun.
So it’s a rare and special occasion on the Loughran homestead when Clint Eastwood can snarl his way across a television screen in a poncho and wide brimmed hat.
But after putting together my latest analysis article on telemedicine and telehealth law, thanks to a comment from Nathaniel Lacktman, I absolutely had to rewatch the Sergio Leone classic from 1966, “The Good, the Bad and The Ugly.”
The movie is about three very different fortune hunters during the American Civil War all taking different paths to try to get to the same thing: a cache of buried Confederate gold.
That’s a good analogy for how states are all following different paths in their legislatures to get to the treasure that is telemedicine reimbursement.
Lacktman brought to my attention three different state telehealth reimbursement laws that he labeled as either “good,” “bad,” or “ugly” examples of legislative drafting in telemedicine coverage parity laws.
The first example Lacktman cited was Mississippi’s statute, which says: “All health insurance and employee benefit plans in this state must provide coverage for telemedicine services to the same extent that the services would be covered if they were provided through in-person consultation.” (Miss. Code § 83-9-351(2)).
According to Lacktman, this statute would’ve made Clint Eastwood’s “Good” Blondie character proud. “It is written in the affirmative, stating in a single sentence the insurer must provide coverage,” he told me. “It is very clear and if you are an insurer, a provider, or a patient, you know what is required under the law.”
Georgia’s payment law, however, suffers from a critical innate defect, Lacktman said, much like Lee Van Cleef’s “Bad” Angel Eyes character. The law requires payment for telemedicine services but qualifies that requirement by making the coverage “subject to all terms and conditions of the applicable health benefit plan.” (O.C.G.A. § 33-24-56.4(d)).
Lacktman called that clause an “escape hatch” built into the law which “essentially eviscerates” it and undermines the legislative intent for coverage parity. Effectively, the law gives insurers an ability to write certain telemedicine services out of their health plans.
Finally, Lacktman pointed out Michigan’s statute, which would give Eli Wallach’s Tuco a run for his money in the “Ugly” department. That law provides that a health insurance policy “shall not require face-to-face contact between a health care professional and a patient for services appropriately provided through telemedicine, as determined by the insurer.” (MCL § 500.3476(1)).
It’s the last clause that Lacktman says disfigures the law. By allowing the insurer to determine what qualifies for coverage, he said, the law is essentially pointless. “Why would you spend any time on that?” Lacktman asked.
These are just three examples. A full listing of coverage or payment laws for telemedicine in all 50 states and the District of Columbia is available through Bloomberg Law’s “State Health Information & Technology: Insurance Coverage of Telehealth Services” chart builder.
I may go through it and see if I can find a way to equate payment parity laws to the characters from “The Magnificent Seven.”
Till then, go check out my full article providing an analysis of how these laws work, featuring insights from Lacktman, Emily Wein from Baker Ober Health Law, Allison Wils and Rene Quashie from Cozen O’Connor, Nadia de la Houssaye from Jones Walker, and Krista Drobac from Sirona Strategies.
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