Trending in Telehealth: January 17 – 23, 2023

Trending in Telehealth is a new weekly series from the McDermott Digital Health team where we highlight state legislative and regulatory developments that impact the healthcare providers, telehealth and digital health companies, pharmacists, and technology companies that deliver and facilitate the delivery of virtual care.

Trending this week:

  • Provider Licensing
  • Telehealth Definitions
  • Telehealth Service Expansion

A closer look:

Finalized: 1

  • New Jersey finalized a seven-year extension to existing rules that were set to expire on January 15, 2023. These rules, in part, allow for flexibility for out of state speech pathologist and audiologists to obtain a license without an examination.

Proposed: 13

  • Maryland saw activity across a collection of nine proposed rules.
    • Comment periods closed on January 17, 2023, for five rules proposed in mid-December. These rules amend or create telehealth standards of practice for LCSWs, Behavior Analysts, Podiatrists, Optometrists, and Audiologists and Speech Pathologists.
    • On January 13 the state proposed rules that clarify standards of practice for telehealth providers in physical therapy and early intervention care for children settings.
    • The state proposed two additional rules expanding services provided via telehealth that would be covered under the Medical Assistance program. This includes expanding reimbursable physician’s services, and care provided in urgent care settings. Both proposed rules require that all telehealth services are compliant with general requirements for telehealth practice to be reimbursed.
  • The South Dakota House passed a bill that amends practice guidelines for speech pathologists, including clarifying telehealth standards. This bill goes to the state Senate for voting.
  • The Wyoming Senate has moved forward on two bills to adopt professional counseling compact and Psychology Interjurisdictional Compact (PsyPact) requirements. These bills both head to the South Dakota House.
  • Texas proposed rule changes related to the provision of prenatal care that expand the use of telehealth and differentiates between medical services provided through telehealth and non-health services.

Highlights for the Industry:

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Trending in Telehealth: January 9 – 16, 2023

Trending in Telehealth is a new weekly series from the McDermott Digital Health team where we track telehealth regulatory and legislative activity. Each week we will highlight developments that impact the healthcare providers, telehealth and digital health companies, pharmacists, and technology companies that deliver and facilitate the delivery of virtual care.

Trending This Week:

  • Provider Licensing
  • Telehealth Definitions
  • Tele-behavioral health

A Closer Look:

Finalized: 2

  • Illinois enacted emergency changes to the Telehealth Act and other statutes that expand the ability of certain out-of-state providers to provide reproductive care via telehealth in the state.
  • Massachusetts’ Department of Medical Assistance finalized rules that amend definitions for diagnostic, case consult and treatment services (beginning on page 139), and establish requirements for licensed independent clinical social workers (LICSWs) to enroll as MassHealth providers and use of telehealth by LICSWs (beginning on page 309).
  • Oregon adopted a rule that clarifies that acupuncturists can provide telemedicine services.

Proposed: 6

  • Alaska proposed a rule that would amend the educational requirements for a professional counselor license, requiring that at least three of the hours are in telehealth. This is added alongside the existing professional ethics requirements and new additions of cultural competencies and suicidality.
  • Florida proposed updates to disciplinary rules for those licensed under the Florida Board of Osteopathic Medicine. The new rules include penalties for failing to identify to patients the type of license under which the practitioner is practicing, expanding the state’s existing rules imposing penalties related to care being provided through telehealth.
  • Texas proposed three rules relating to behavior analysts’ use of telehealth, as a result of a four-year rule review conducted by the Texas Department of Licensing & Regulation. These proposed rules establish requirements for behavior analysts’ use of telehealth in delivering care and align definitions with telehealth regulations for other providers. The public comment period for all three rules ends on February 5, 2023.
  • Wyoming proposed a rule that would modify standards of practice for occupational therapy. This includes clarification surrounding the requirement for occupational therapists and occupational therapist assistants to hold a Wyoming license to provide services to a patient in Wyoming, including treatment delivered through telehealth technologies, at the time of services. The public comment period ends March 5, 2023.

Highlights for the Industry:

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APTA Pushes Digital Health Companies to Use “Physical Therapy” in Marketing Materials Only When the Care is Directed by Licensed Physical Therapists

On December 2, 2022, the American Physical Therapy Association (APTA) published a statement concerning a recent decision from UnitedHealthcare and its contractor, Kaia Health, to stop marketing Kaia Health’s services as “physical therapy” given that Kaia Health’s program does not consistently involve licensed physical therapists. As a result, digital health companies that market themselves as providing physical therapy should evaluate their marketing and customer communications to determine whether any revisions are required pursuant to the APTA’s guidance.

BACKGROUND
The APTA and APTA North Carolina sent a letter to UnitedHealthcare, along with a complaint filed with the North Carolina Board of Physical Therapy Examiners, identifying that the services provided through Kaia Health’s application were not overseen by a licensed physical therapist. UnitedHealthcare subsequently acknowledged that Kaia Health and United Healthcare’s benefits manager, Optum, utilized the phrase “physical therapy” in its marketing materials and that all materials would be revised to remove reference to physical therapy.

WHY IT MATTERS
The APTA has consistently held that physical therapy, either in person or digitally, must be “performed or directed only by licensed physical therapists.” The APTA has requested that physical therapy providers sign a pledge, which in part acknowledges that the “physical therapist examination, evaluation, diagnosis, development of a management plan, and intervention shall be represented and reimbursed as ‘physical therapy’ only when performed by a physical therapist or when selected interventions are performed by a physical therapist assistant under the direction and supervision of a physical therapist.” Several digital healthcare companies have signed onto the APTA’s pledge.

The complaint filed with the North Carolina Board of Physical Therapy Examiners, along with the APTA’s letter to UnitedHealthcare, are strong indicators that state boards of physical therapy and industry groups are reviewing the marketing and the scope of services offered by virtual physical therapy companies, as well as companies who partner with virtual physical therapy companies.

Businesses offering digital or virtual physical therapy or musculoskeletal services should review their service descriptions and marketing materials and assess whether any updating is required—a task our healthcare team can help with. For assistance or questions, please reach out to your regular McDermott lawyer or contact any of the authors of this article.




Final Episode | Markets Under Pressure Strategies for Restructuring and Risk Management

In this new video series, McDermott’s digital health team shares timely insights and strategies to help your organization stay ahead of the curve, addressing critical areas of workforce management, financing and the potential for restructuring.

Today’s market pressures increase the potential for broken financial covenants. In this episode, McDermott partners Dale Van Demark and Felicia Perlman discuss steps that digital health companies can take now to prepare for the possibility of restructuring and mitigate associated risks.


Explore the full series and their takeaways here.





Episode Two | Managing Capitalization Structures and Investor Relationships in Today’s Digital Health Market

In this new video series, McDermott’s digital health team shares timely insights and strategies to help your organization stay ahead of the curve, addressing critical areas of workforce management, financing and the potential for restructuring.

In episode two, McDermott partner and digital practice co-head Lisa Mazur joins fellow partner Brian Gordon to review important considerations for navigating today’s market realities.


Explore the full series and their takeaways here.





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