OF DIGITAL INTEREST

Trending in Telehealth: February 6 – 12, 2023

By Patrick Zanayed and Angela Irene Theodoropoulos on Feb 16, 2023
Posted In Telehealth

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.
Wyoming legislation has been approved in both chambers to adopt the Psychology Interjurisdictional Compact, and the approved senate bill to join the Interstate Compact for Licensed Professional Counselors has passed the first committee in the house.
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.

Why it matters:

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Trending in Telehealth: January 24, 2023 – February 5, 2023

By Stacey Callaghan, Amanda Enyeart, Angela Irene Theodoropoulos and Abby Higgins on Feb 8, 2023
Posted In Telehealth

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 in the past two weeks:

Telebehavioral Health
Medicaid Coverage
Provider Practice Standards
Teledentistry
Occupational Therapy
Audiology and Speech Pathologists
School-Based Mental Health

A closer look:

Finalized: 8

Texas has updated its regulations for the Mental Health Rehabilitation and Mental Health Case Management Services Programs, both including rules concerning telehealth use for the services and reimbursement.
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 [...]

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Trending in Telehealth: January 17 – 23, 2023

By Dale C. Van Demark and Abby Higgins on Jan 24, 2023
Posted In Telehealth

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

By Amanda Enyeart and Abby Higgins on Jan 19, 2023
Posted In Telehealth

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

By Purnima Boominathan and Lisa Mazur on Dec 22, 2022
Posted In Advertising & Marketing, New Blog Guidance

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.