OF DIGITAL INTEREST

How to Prepare for New State Health Privacy Laws

by McDermott Will & Emery | Mar 8, 2024 | Data Privacy

New state privacy laws regulating health data impose significant obligations and heightened risks. In addition to existing laws in California, Colorado and other states, Washington State’s My Health My Data Act and Nevada’s Consumer Health Data Privacy Law take effect in March 2024 and will require new or updated privacy notices, enhanced consent and many other compliance steps. Increasing regulator scrutiny of these issues and a new private cause of action in Washington make these laws top compliance priorities.

These laws impact entities ranging from healthcare providers and plans handling non-HIPAA health information online to pharmaceutical, fitness, wellness, identity verification and consumer goods companies. Join our health information privacy lawyers Elliot Golding and Sam Siegfried on March 12 to understand how these laws apply to your company and what you need to do now to prepare.

Discussion topics include:

The scope, applicability and requirements under state privacy laws related to health data
A deep dive into complex issues arising under these laws, such as the use of cookies and online tracking technologies
Benchmarking and practical recommendations for complying with these new requirements and building a harmonized compliance program

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Trending in Telehealth: February 27 – March 4, 2024

by Amanda Enyeart and Nathan Gray | Mar 7, 2024 | Telehealth

Trending in Telehealth highlights 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
Expanding telehealth
Regulation of teledentistry

A CLOSER LOOK

Legislation & Rulemaking Activity in Proposal Phase:

Highlights:

In Arizona, HB 2446 passed the first chamber. If enacted, the bill would establish licensing requirements for dietician nutritionists and nutritionists, which would allow for the delivery of dietetic and nutrition services via telehealth.
In Florida, HB 849 passed both chambers. If enacted, the bill would establish requirements for the delivery of veterinary telehealth services by Florida-licensed veterinarians.
In Florida, HB 855 passed both chambers. If enacted, the bill would, among other changes, require dental practice to designate a dentist of record with the Florida Board of Dentistry. It would also require dentists to perform an in-person examination of a patient or to obtain records of an in-person evaluation before initiating orthodontic treatment. The proposal would also require that dentists placing advertisements of dental services provided through telehealth include a disclaimer recommending an in-person examination for each of the following services: an impression or digital dental scan, denture services, placement of an appliance or other structure, and orthodontic treatment. Under the proposal, failure to comply with the evaluation requirement and failure to provide patients with contact information of each dentist who is providing dental services to a patient would be grounds for discipline.
In Georgia, HB 844 passed the first chamber. If enacted, the bill would establish licensing requirements for dietician nutritionists and nutritionists, which would allow for the delivery of dietetic and nutrition services via telehealth.
In Georgia, HB 441 passed the first chamber. If enacted, the bill would, among other requirements, require a dentist intending to provide care via teledentristry to notify the Georgia Board of Dentistry and to provide documentation that the dentist had established a referral relationship with a dentist capable of providing in-person dental care at a location within the state meeting certain geographic requirements. A dentist providing teledentistry would be permitted to authorize dental hygienists to perform certain dental hygiene functions, prescribe noncontrolled prescriptions and authorize the performance of digital scans and the transmission of patient records to the dentist. The proposed bill would require dentists to perform an initial in-person examination and an in-person exam at least once every 12 months to provide teledentistry services to a patient, except for patients seen in certain specified settings. It would also require dentists to obtain written authorization to a patient with information about the treating dentist and dental hygienist and obtain informed consent after providing a written statement advising the patient that teledentistry was not equivalent to an in-person clinical exam and that the dentist would not physically be present. The bill would prohibit an insurer from excluding coverage for a service [...]

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Trending in Telehealth: February 12 – February 26, 2024

by Amanda Enyeart, Dale C. Van Demark and Grayson Dimick | Mar 7, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Professional standards

A CLOSER LOOK

Finalized Legislation & Rulemaking

South Dakota enacted the Counseling Compact, making it the 33rd state to ratify the compact.
South Dakota also adopted HB 1029, which specifies that licensed hearing aid dispensers and audiologists can deliver services via telehealth provided they are of the same quality as services delivered face-to-face.
In Texas, the Commission of Licensing and Regulation adopted rules that reorganize and revise telehealth standards for behavioral analysts. The changes include better aligning the telehealth practice standards with those for other professions regulated by the Department of Licensing and Regulation. Similarly, the Commission of Licensing and Regulation adopted a rule addressing supervision for behavioral analysts, which includes provisions addressing supervision via telehealth.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

In Arizona, SB 1036 passed the first chamber. If enacted, the bill would enact the Social Work Licensure Compact.
In Florida, SB 7016 passed both chambers. If enacted, the bill would enter Florida into the Interstate Medical Licensure Compact.
In Louisiana, the Behavior Analyst Board proposed rules governing behavioral analyst practice, including establishing telehealth practice standards.
In Oklahoma, the Board of Examiners in Optometry proposed rule 505:10-5-19 that would address telemedicine practice by optometrists and, among other things, prohibit an optometrist from prescribing contact lenses or spectacles via a telemedicine encounter. The rule would also establish requirements for informed consent and practice requirements associated with a telemedicine visit.
In Tennessee, SB 2134 and HB 2405 each passed one chamber. If enacted, the bills would enact the Social Work Licensure Compact.
In Utah, SB 24 passed both chambers. If enacted, the bill would require Medicaid reimbursement for telepsychiatric consultations between a physician assistant and a psychiatrist. The law currently requires reimbursement only for telepsychiatric consultations between a physician and a psychiatrist.
In Virginia, HB 326 passed the first chamber. If enacted, the bill would enter Virginia into the Counseling Compact.
In West Virginia, HB 4110 passed the first chamber. If enacted, the bill would authorize the state’s Board of Licensed Dietitians to promulgate a legislative rule relating to telehealth practice, requirements and definitions.
In Wisconsin, SB 158 passed both chambers and awaits the governor’s signature. If enacted, the bill would enact the Social Work Licensure Compact.

Why it matters:

States continue to increase activity surrounding licensure compacts for a variety of health professionals. These state efforts ease the burdens of the licensing process and demonstrate a desire to facilitate multijurisdictional practice without giving up [...]

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Trending in Telehealth: February 5 – 12, 2024

by Amanda Enyeart and Grayson Dimick | Feb 15, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Facilitation of connectivity and data exchange
Professional standards

A CLOSER LOOK

Finalized Legislation & Rulemaking

South Dakota enacted the Social Work Licensure Compact, becoming the second state to enact the compact. Missouri enacted the compact in July 2023. The compact will become active once enacted by seven states. According to the National Center for Interstate Compacts, 24 other states have introduced the compact.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

In Idaho, HB 393 passed the first chamber. If enacted, it would enter Idaho into the Counseling Compact.
In Indiana, SB 132 passed the first chamber. Currently, Indiana law provides that an out-of-state provider licensed in Indiana may not provide telehealth services in Indiana until the provider and their employer/contractor have filed a certification with the Indiana Professional Licensing Agency that the provider and employer/contractor agree to be subject to Indiana jurisdiction and Indiana substantive and procedural laws. If enacted, the bill would remove the requirement to file the certification, though providers would still be subject to Indiana jurisdiction and Indiana substantive and procedural laws, and the provision of health services (rather than the filing of the certification) would constitute a voluntary waiver of other jurisdictional rights.
In West Virginia, HB 5310 passed the first chamber. If enacted, the bill would enact the Remote Patient Outcome Improvement Act to authorize insurers and providers to partner with internet service providers to facilitate the transmission and analysis of vital signs and medical device data.
In Wisconsin, the Marriage and Family Therapy, Professional Counseling and Social Worker Examining Board proposed a rule that would update telehealth practice standards by defining telehealth, creating of a new subsection that establishes standards of telehealth practice, amending the definitions of “face-to-face” and “supervision” to include telehealth practice, and amending of unprofessional conduct provisions to incorporate telehealth practice.

Why it matters:

States continue to increase activity surrounding licensure compacts for a variety of health professionals. These state efforts ease the burdens of the licensing process and demonstrate a desire to facilitate multijurisdictional practice without giving up authority over professional licensure.
Measures emphasizing connectivity and infrastructure complement the increasing availability of reimbursement for remote monitoring and other virtual care modalities. States propose measures such as West Virginia’s Remote Patient Outcome Improvement Act with the expectation that they will help reduce costs of avoidable emergency room and other medical visits when paired with remote monitoring programs.
States continue to amend and clarify professional practice standards for telehealth. With the increase in the delivery of care through virtual modalities, professional boards are adopting standards governing telehealth practice across multiple health professions and revising [...]

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Trending in Telehealth: January 29 – February 5, 2024

by Lisa Mazur and Grayson Dimick | Feb 9, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Medicaid coverage
Private payor coverage

A CLOSER LOOK

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

In Michigan, HB 4579 and HB 4580 passed both chambers. If enacted, the bills would require coverage parity of telehealth services in health plans and Medicaid, respectively.
In New Hampshire, SB 318 passed the first chamber. If enacted, the bill would enter New Hampshire into the Social Work Licensure Compact.
In South Carolina, H 4159 passed both chambers. If enacted, the bill would create a new “South Carolina Telehealth and Telemedicine Modernization Act,” which would regulate all licensees providing services via telehealth. The bill would also revise the Medical Practice Act statutes related to telehealth, including addressing ongoing care provided by an out-of-state physician not licensed in telehealth, as well as implementing standards for licensees solely providing services via telehealth (including evaluation, recordkeeping, follow-up care and prescribing standards).
In South Dakota, HB 1012 and HB 1015 passed the first chamber. If enacted, the bills would enter South Dakota into the Counseling Compact and Social Work Licensure Compact, respectively.
In Tennessee, SB 1862 and HB 1863 passed the first chamber. If enacted, the bills would enter Tennessee into the Dietitian Licensure Compact.
In Tennessee, HB 2461 and SB 1674 passed the first chamber. If enacted, the bills would allow for Tennessee’s Medicaid program to reimburse qualifying remote ultrasound procedures and remote fetal nonstress tests when the patient is in a residence or other off-site location that is separate from the patient’s provider and the same standard of care is met.
In Utah, HB 44 passed both chambers. If enacted, the bill would enter Utah into the Social Work Licensure Compact.
In Utah, SB 24 passed the first chamber. If enacted, the bill would amend the statute providing for Medicaid reimbursement for telepsychiatric consultations to require coverage for telepsychiatric consultations conducted by physician assistants.
In Virginia, SB 2500 passed the first chamber. If enacted, the bill would require the Virginia Department of Medical Assistance Services to modify the state plan for medical assistance to include a provision allowing for reimbursement for remote ultrasound procedures and remote fetal nonstress tests under certain conditions.

Why it matters:

There continues to be an increase in activity surrounding licensure compacts. This includes established compacts, such as the Counseling Compact and Social Work Licensure Compact, as well as the Dietician Licensure Compact, which recently finalized its model legislation and has not yet been enacted in any states. In general, these state efforts ease the burdens of the licensing [...]

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