Verifying the identity of a patient prior to delivering telehealth services is important to prevent a range of potential risks, including the creation of fake accounts, insurance fraud and drug abuse/diversion. A growing number of states and health plans require the verification of a patient’s identity. This verification activity has become a standard practice in the telehealth industry and is expected to continue.
Trending in Telehealth is a new series from the McDermott Digital Health team in which 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 in the past week:
Interstate Compacts
Audiology and Speech Pathologists
Prescribing
Health Practitioner Licensing
Behavioral Health
A CLOSER LOOK
Finalized Legislation & Rulemaking: 7
Wyoming has signed into law a bill to join the Interstate Compact for Licensed Professional Counselors.
Virginia has had significant activity over the past week:
The state has enrolled the Audiology and Speech-Language Pathology Interstate Compact (HB 2033). The bill will become law if signed by the governor or if the governor does not act within 30 days of the date of adjournment under the terms of the state constitution.
Virginia has also enrolled a bill (HB 2374) prohibiting pharmacies and pharmacists from refusing to fulfill prescriptions based solely on the fact that the prescriber used a telemedicine platform to provide services.
In addition, the state’s legislators have enrolled another bill (HB 1754) that modifies telemedicine exceptions for out-of-state doctors of medicine or osteopathy, physician assistants, respiratory therapists, occupational therapists or nurse practitioners. Specifically, under HB 1754, if such a practitioner with whom the patient has previously established a practitioner-patient relationship is unavailable when the patient seeks continuity of care, another practitioner of the same subspecialty at the same group practice with access to the patient’s treatment history may provide continuity of care using telemedicine services until the practitioner with whom the patient has a previously established relationship becomes available.
Texas has adopted rules to implement Code § 531.02161(b)(4), which requires Texas Health and Human Services to ensure that, if cost effective, clinically effective and allowed by federal law, a Medicaid recipient has the option to receive certain services, including occupational therapy, physical therapy and speech-language pathology, as a telehealth service. The adopted rules require initial eligibility and personal assistant services assessments to be completed in person unless certain conditions exist, in which case the assessment may be completed by telehealth, telephone or video conferencing.
In Washington, the two final rules concerning telehealth addressed in detail in last week’s post have gone into effect.
Legislation & Rulemaking Activity in Proposal Phase: 40
Trending in Telehealth is a 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 in the past week:
Interstate Compacts
Audiology and Speech Pathologists
Behavioral Health
E-Prescribing
A closer look:
Finalized Legislation & Rulemaking: 5
Wyoming has officially adopted the Psychology Interjurisdictional Compact (PSYPACT).
South Dakota has passed legislation that amends 36-37-7, which states that any person who is licensed pursuant to this chapter may provide speech-language pathology services via telehealth. Services delivered via telehealth must be equivalent to the quality of services delivered face-to-face. For the purposes of this section, the term, telehealth, has the meaning provided in § 34-52-1. The legislation also amends § 36-37-1 and removes the definition for “telepractice.”
Washington passed two final rules concerning telehealth:
WSR 23-04-048: This final rule promulgates regulations to align with recently passed legislation that, among other items, touches on consent when audio-only is used and store-and-forward services. The agency revised this part of the regulations to clarify that the patient consent to billing requirement applies to audio-only telemedicine services.
WSR 23-04-052: This final rule consolidates the telehealth sections into one and makes a technical correction on the use of telehealth for speech language pathology. Specifically, “speech language pathology services by telemedicine when not available in person” will be removed. This was added in a rule making during the public health emergency in error. The consolidated telemedicine rules apply to all programs and will reside in new WAC 182-501-0300.
Ohio passed a final rule concerning Medicaid reimbursement. The rule permits the use of Intensive home-based treatment (IHBT) via telehealth in accordance with rule 5122-29-31 of the Administrative Code.
Trending in Telehealth is a 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 in the past week:
Telehealth Practice Standards
Interstate Compacts
Medical Cannabis
E-Prescribing
A closer look:
Finalized: 3
Ohio’s State Medical Board has adopted new telehealth rules via the issuance of three final rules: (1) implementing the requirements of the telehealth statute for physicians (MD, DO, and DPM), physician assistants, dietitians, respiratory care professionals and genetic counselors, (2) regulating controlled substances and telehealth prescribing and (3) rescinding past e-prescribing language. The rules will go into effect on February 28, 2023.
Proposed: 20
Highlights:
Montana, Virginia, and Washington have proposed enacting the Audiology and Speech-Language Pathology Interstate Compact.
Virginia has also had an interstate compact bill pass both chambers, with its house bill to join the Counseling Licensure Compact receiving approval in the senate.
South Dakota has proposed requiring a bona fide patient-patient relationship for the prescription of medical cannabis and disallowing practitioners from conducting the required in-person physical examination via telehealth.
In contrast, Virginia has proposed legislation to allow certification for the use of medical cannabis for treatment via telemedicine.
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.
North Carolina has finalized rules for the licensure and regulation of behavioral analysts, which include regulations for the provision of services via telehealth. The state has also issued a final rule to establish telepractice standards for practitioners providing medical nutrition therapy to clients/patients within the state.
Kentucky and Missouri both passed emergency rules relating to teledentistry. Missouri’s emergency rule implemented a pilot program designed to examine new methods of extending dental care to underserved populations, specifically targeting nursing homes and long-term care facilities utilizing telehealth technology. Kentucky’s emergency administrative regulation was implemented to extend coverage of dental and other types of coverage (audiology and vision) to Medicaid recipients and established Medicaid requirements around dental services.
Proposed: 31
The Virginia Senate passed a bill that makes changes to Medicaid reimbursement. This new bill specifies that a healthcare provider licensed by the Commonwealth who is providing care exclusively through telemedicine shall not be required to maintain a physical presence in the Commonwealth to be considered an eligible provider for enrollment as a Medicaid provider, and a telehealth group need not have an in-state service address to be eligible to enroll as a Medicaid vendor or provider group.
Utah’s House passed a bill that would repeal the state’s Online Prescribing, Dispensing, and Facilitation Licensing Act along with sections of various laws related to establishing a provider-patient relationship for purposes of prescribing, specifically removing a related exception to the prohibition against providing prescriptions based solely on a questionnaire, email, or patient-generated medical history.
Oregon has proposed medical fee reimbursements updates related to workers’ compensation. There are minor adjustments proposed to the reimbursement for telehealth, related to codes required for claims.
Maryland proposed a new rule that would add telehealth provisions for chiropractic medicine. The new chapter would define licensure, professional standards, and patient/client evaluation requirements.
In South Dakota, a bill amending the practice guidelines for speech pathologists—allowing any licensed speech pathologist to provide services through telehealth—has passed both chambers and is being presented to the Governor for approval.
Utah and Washington both proposed bills addressing mental health through telehealth services in school settings. Utah proposed a bill to fund mental health counseling for public school students including telehealth services. Washington proposed a bill to require contracts with telehealth providers for mental and behavioral healthcare for [...]
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.
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.
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.
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
Illinoisenacted 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).
Oregonadopted a rule that clarifies that acupuncturists can provide telemedicine services.
Proposed: 6
Alaskaproposed 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.
Floridaproposed 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.
Texasproposed 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.
Wyomingproposed 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.
The continuation of the COVID-19 public health emergency (PHE) and consumer demand for digitally delivered healthcare not only necessitated the shift from in-person to virtual care, but also continued to drive interest, adoption, investment and transactions in digital health in 2021. Digital health funding in 2021 far surpassed 2020’s totals, with no signs of slowing down in 2022, and the potential permanence of some regulatory flexibilities beyond the PHE are charting a course for continued digital health growth in 2022 and beyond.
On December 27, 2020, the No Surprises Act was signed into law as part of the Consolidated Appropriations Act, 2021. In July and October 2021, respectively, the Department of Health and Human Services, the Department of Labor, the Department of the Treasury and the Office of Personnel Management (the Departments) issued two Interim Final Rules implementing core aspects of the No Surprises Act, including (1) prohibiting non-participating providers from balance billing individuals who receive services in participating facilities unless prior notice and consent is provided and obtained (referred to as Part I);[1] and (2) requiring providers and facilities to provide good faith estimates (GFE) to uninsured (or self-pay) individuals of expected charges prior to their scheduled services (referred to as Part II, and together with Part I and the statute, the NSA).[2]
Effective as of January 1, 2022, to the extent that an out-of-network telemedicine provider furnishes services to a patient at an in-network facility, the disclosure notice requirements and balance billing prohibitions under Part I apply. Additionally, to the extent that a telemedicine provider furnishes services to an uninsured (or self-pay) patient, the transparency requirements under Part II, including the requirement to provide a GFE, may apply. Notably, the NSA provides for steep penalties, including imposition of civil monetary penalties of up to $10,000 per violation. Additional information regarding a telemedicine provider’s compliance obligations under the NSA are outlined below.
In hopes that the COVID-19 public health emergency (PHE) will soon end, Congress and the administration are evaluating the telehealth expansions and flexibilities put in place to respond to the PHE. As a result, the future for telehealth stakeholders remains uncertain. This article outlines various changes in Medicare telehealth reimbursement policy in effect during the PHE and identifies what actions would be required to make these changes permanent.
Since the implementation of the PHE, there has been a significant uptick in the provision of telehealth services by Medicare, other public payers and commercial payers. In response to this increased utilization and outreach by stakeholders, Congress has actively explored ways to make some, or all, of the PHE flexibilities permanent.
During the PHE, telehealth providers have been able to receive reimbursement for a greater variety of telehealth services, leverage more types of healthcare providers, and treat patients in more locations than ever before. Telehealth providers have been energized by these changes and are voicing resistance to the prospect of losing these new reimbursement opportunities post-PHE.
The pathways to making telehealth flexibilities permanent, however, are neither simple nor clear. Reimbursement for telehealth services is governed by complex statutory, regulatory and subregulatory requirements at the state and federal level. At the federal level, the PHE-driven changes have come via both federal legislation and regulatory modifications. This article describes what steps would be necessary to make federal telehealth reimbursement policy changes permanent as the healthcare system recovers and rebuilds from the COVID-19 pandemic.
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