Looking Forward By Looking Back

Looking Forward By Looking Back

 The Federal Public Health Emergency and California State of Emergency Have Ended!

Looking Forward by Looking Back

On March 1, 2023, California emerged from its three-year long declared state of emergency due to the COVID-19 pandemic. In these last three years, practices have opened entirely under flexibilities permitted by the pandemic and even those more seasoned clinicians – like most of us – may struggle to remember how their businesses operated prior to the pandemic. Additionally, the federal public health emergency expired on May 11, 2023.

CAMFT has put together a summary of important items for our members to review about how the end of the state of emergency may impact your practices. We recognize that each practice and clinician may have questions not fully addressed in this guide. As always, should you have any questions about how the lifting of the state or federal emergencies will impact your practice please contact CAMFT’s Legal Department for further guidance.


Providing Care via Telehealth

Telehealth is part of our world in a way that it was not in March 2020. In recognition of this fact, BBS now requires all licensees renewing their license as of July 1, 2023, to complete a one-time three-hour law and ethics course on the topic of providing care via telehealth. CAMFT has several courses that meet this requirement, for our most recent three-hour course on this topic is available here.

Check out CAMFT’s Telehealth Corner for information and resources on telehealth.

California Law
California Executive Order N-43-20 expires February 28, 2023. This Executive Order was broad reaching, suspending many causes of action and fines associated with breaches of patient information during the good faith provision of telehealth services. For example, during the state of emergency if the therapist was providing telehealth services in good faith and there was a breach of confidentiality the clinician was not subject to fines and civil penalties.

Beginning March 1, 2023, the laws permitting patients to sue for damages resulting from a breach will be back in full effect. Specifically, patients who experience a breach of confidentiality resulting in economic loss or personal injury will once again be able to seek damages from a provider under Civil Code section 56.35. Additionally, the provisions of Civil Code section 56.36 addressing administrative fines, civil penalties, and a private right of action for the negligent release of confidential information or records will once again be in full force and effect. Similarly, the civil penalties associated with timely notification requirements to patients following a breach in an electronic system as allowed for in Civil Code sections 1798.29 and 1798.82 will once again be in full effect.

Insurance Reimbursement and Related Issues
If you are a managed care provider, or a Medi-Cal provider, see below for specific information.  More resources will be available soon on CAMFT's Telehealth Corner - check back here for updates.
Managed Care Provider Resources
Medi-Cal Provider Resources

Certain HIPAA Flexibilities Remain in Effect Until May 11, 2023
On March 17, 2020, the Office of Civil Rights (the enforcement arm of HIPAA for the federal government) announced that it would not take enforcement action against HIPAA covered entities who provided care via telehealth under certain conditions. If the covered entity was, in good faith, providing telehealth services via a non-public facing mechanism, it could avoid an enforcement action even if it did not have a business associate agreement with that third-party platform. In essence, so long as the provider was not streaming a session over Facebook Live or some similar public platform, the provider would not face fines from the federal government.

The public health emergency ends on May 11, 2023, at which time there will be a 90-day transition period, which ends on August 10, 2023. The enforcement discretion over the use of non-HIPAA compliant telehealth platforms will continue throughout the duration of the transition period. At the end of the transition period on August 10, 2023, HIPAA covered entities must resume providing telehealth services using HIPAA-compliant platforms. To be in compliance, covered entities and providers must provide telehealth services via a platform with which they have a business associate agreement.

A business associate agreement is required anytime a third-party will have access to protected health information on behalf of a covered entity – whether a third-party biller, your attorney, or videoconferencing platform. Covered providers using telecommunications platforms such as Apple’s FaceTime or regular Zoom without a business associate agreement should take this time to prepare to switch to a HIPAA-compliant platform. CAMFT recognizes that many clinicians and patients may have become comfortable using non-compliant means of receiving and providing services, and some adjustment time may be necessary in the lead-up to August 10, 2023.

Managed Care Provider Resources

Reimbursement for Telehealth
We recognize there is concern about reimbursement for telehealth services now that the state of emergency is ending. Thankfully AB 744 was signed into law in 2019 and requires all health plans and insurers regulated by California’s Department of Managed Healthcare or the Department of Insurance to reimburse telehealth services on the same basis and to the same extent that the plan reimburses for in-person services. This law removes significant barriers to access to care, but health plans may still require in-network providers to meet certain requirements to provide telehealth services to their patients. CAMFT urges providers to check with any health plans they may be in network with to confirm they meet any underlying requirements in providing telehealth. Read more about AB 744 and other updates to managed care here.

Healthcare Provider Address
Throughout the state of emergency APL 20-032 prohibited a health plan from including a provider’s home address in its provider directory unless specifically authorized to do so. Additionally, providers were permitted to list the provider’s practice address as of March 3, 2020, on the provider directory. Beginning March 1, 2023, the APL flexibilities will lift, and providers should ensure their information in the provider directory is accurate. The practice address and practice location or locations refer to the physical location(s) where health care services are rendered to an enrollee by a contracted provider. A provider who only provides care via telehealth or in a patient’s home should ensure that notation is clearly reflected in the health plan’s directory and under those circumstances a practice address does not need to be provided.

Providers should ensure their National Provider Identifier (NPI) reflects their current address(es). A provider must include both their business mailing address and business practice location – both of which are publicly available via the NPI Registry on the National Plan and Provider Enumeration System (NPPES).

CAMFT members wishing to learn more about California’s Provider Directory requirements should review our article on the topic.

Medi-Cal Provider Resources

With the federal public health emergency remaining in effect until May 11, 2023, Medi-Cal providers remain subject to certain flexibilities. Providers should, however, re-familiarize themselves with the standard requirements when providing care to Medi-Cal recipients to be prepared once flexibilities lift later this year.

Telehealth Flexibilities
Telehealth services should be reimbursed at the same rate as in-person services. Providers are encouraged to review Medi-Cal’s telehealth policy for additional information. Healthcare providers performing services via telehealth must meet the following requirements: 1) be licensed in California; 2) be enrolled as a Medi-Cal rendering provider; and 3) be affiliated with an enrolled Medi-Cal provider group. Telehealth policy and billing information for Federally Qualified Health Centers (FQHCs), Rural Health Clinics (RHCs) and Indian Health Services (IHS) can be found in the Medi-Cal provider manuals for those settings.

Providers may establish relationships with new patients through synchronous (real-time) video telehealth (i.e., video teleconference) visits. Providers are also permitted to establish relationships with new patients through audio-only (i.e., telephone-only) synchronous (real-time) interaction if one or more of the following circumstances applies:  

  • The visit is related to “sensitive services.”  
    • Note: Sensitive services are defined under Section 56.06 of the California Civil Code as health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender-affirming care, and intimate partner violence as well as services described in Sections 6924 through 6930 of the Family Code (minor consent for medical treatment), and Sections 121020 and 124260 (mental health services for minors) of the Health and Safety Code by a patient who meets the minimum age requirement for consent to services.  
  • The patient requests to receive audio-only service. 
  • The patient attests that they do not have access to video. 

Note: Because psychotherapy is a "sensitive service," Medi-Cal providers offering psychotherapy services to Medi-Cal patients are generally able to establish new relationships with those patients via audio-only, synchronous methods.

Consent for Telehealth
Before conducting telehealth services, providers must inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth. Consent must be documented in the patient’s record and be available to DHCS upon request. Providers must also document when a patient consents to audio-only services before delivering those services. Providers are required to share the following information with their Medi-Cal patients:  

  • The right to in-person services 
  • The voluntary nature of consent 
  • The availability of transportation to access in-person services when other available resources have been reasonably exhausted 
  • The limitations and risks of receiving telehealth services 
  • The availability of translation services
    • Note: The requirements for consent for telehealth services are found in Business and Professions Code, Section 2290.5(b) and Welfare and Institutions Code Section 14132.725(d). 

Documentation of Telehealth Services
Clinicians should follow the same documentation requirements as for services provided in-person, keeping in mind California’s additional documentation requirements when providing care via telehealth. Providers should ensure they are billing for services delivered via telehealth using the appropriate CPT Code and modifier. Billing modifiers for telehealth depend on how services are rendered:

  • Modifier 95 must be used for synchronous (real-time interactive) audio and visual services (i.e., videoconferencing).
  • Modifier 93 must be used for telephone or other interactive audio-only telecommunications systems (i.e., phone).

Provider Addresses
Within the Medi-Cal system, the term “business address” means the location where an applicant or provider provides services, goods, supplies, or merchandise, directly or indirectly, to a Medi-Cal beneficiary. A post office box or commercial box (such as a virtual business address) is not a business address for purposes of providing care to Medi-Cal recipients. Information regarding acceptable provider business addresses comes from the Medi-Cal Provider Enrollment Regulations.  

Types of Settings for Originating or Distant Sites
Medi-Cal does not limit the type of setting where telehealth services may be provided (i.e., the originating site) or the type of setting where a provider must be located when rendering telehealth services (i.e., the distant site). Providers are, however, required to ensure and maintain patient privacy in any location from where they are delivering services. 

Remote Service (Telehealth-Only) Providers
Beginning March 29, 2023, Medi-Cal provider enrollment requirements and procedures will create exemptions from place of business requirements for mental-health providers who offer “remote-only” (I.e. telehealth-only) services.

The providers who may apply for enrollment as remote service-only (I.e. telehealth-only) providers include:

  • Licensed Clinical Social Workers;
  • Licensed Marriage and Family Therapists;
  • Licensed Professional Clinical Counselors;
  • Nurse Practitioners specializing in Psychiatry;
  • Physicians specializing in Psychiatry; and
  • Psychologists

Providers who wish to be considered for enrollment in the Medi-Cal program must submit an application through PAVE, DHCS’s Provider Application and Validation Enrollment portal. The online application requires the submission of supporting documents and a signed Remote Services-Only attestation. For more information go to PED_Requirement and Procedures for Medi-Cal Enrollment of Providers Offering Services Remotely or Indirectly from their Business Address (PED_EPOB Exceptions). This information can also be found on the Provider Enrollment page of the Medi-Cal website.

Emergency Fee-For-Service Enrollment Ending Soon
As of March 29, 2023, providers who were temporarily enrolled as Medi-Cal Fee-For-Service providers during the pandemic and wish to remain enrolled must submit an application and meet all program requirements.

Providers will be given a period of 90 days after March 29, 2023 to submit an application through PAVE, DHCS’s Provider Application and Validation Enrollment portal. Providers who fail to apply by June 27, 2023 will be disenrolled (I.e. no longer recognized as a Medi-Cal provider) as of June 28, 2023.

More information regarding requirements for temporary FFS providers can be found at Medi-Cal NewsFlash: Discontinuation of COVID-19 Emergency Fee-For-Service Medi-Cal Enrollment.

DHCS Telehealth Research and Evaluation Plan
The California Department of Health Care Services (DHCS) continues to monitor the use and impact of telehealth throughout the Medi-Cal system. The Department’s Telehealth Research and Evaluation Plan, which describes those efforts, can be found at DHCS RE Plan (ca.gov).  

General Provider Information Post-Pandemic

CDPH | Face Covering in Healthcare Settings
According to the California Department of Public Health’s March 3, 2023 updated guidance, masks remain required for all individuals in a healthcare setting through April 2, 2023. As previously noted, CAMFT, in consultation with other professional organizations, understands healthcare settings include behavioral healthcare private practice settings. On April 3, 2023, masks will no longer be required for healthcare settings. Instead, healthcare settings are to follow the community level guidance where recommendations for masks range from “should be considered” in the low tier up to “strongly recommended” if there is a high community spread in the area.

CDPH | Vaccine Requirement for Healthcare Workers
The California public health order requiring vaccination of healthcare workers remains in effect through April 2, 2023. On April 3, 2023, vaccinations will no longer be required for most LMFTs. Members providing care in Medicare or Medicaid-certified sites, such as community mental health centers, psychiatric treatment facilities, home health agencies, or Rural Health Clinics and Federally Qualified Health Centers are subject to federal COVID-19 vaccination requirements. Providers in these settings should review the Revised Guidance for Staff Vaccination Requirements and seek guidance from their employer.

Employer | Cal/OSHA Requirements
Cal/OSHA has issued its COVID-19 Prevention Non-Emergency Regulations and has a dedicated guidance and resources page.

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