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Trending in Telehealth : March 28 – April 3, 2023

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 of virtual care.

Trending in the past week:

  • Interstate Compacts
  • COVID-19 Extensions for Licensing
  • Behavioral Health

A CLOSER LOOK

Finalized Legislation & Rulemaking

  • In Vermont, H 411 was signed into law. As noted in last week’s report, the bill extends Vermont’s telehealth registration for out-of-state healthcare professionals until a permanent telehealth licensure and registration system is operational. The registration, which was previously set to expire on June 30, 2023, provides a telehealth registration for out-of-state healthcare professionals who file an application and meet certain requirements to provide telehealth services in Vermont, which is more expeditious than the state’s licensure process. The registration is extended until March 31, 2024. The bill also extends certain enforcement discretion provisions. For example, the bill clarifies that the state will not penalize providers for using telehealth services that do not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996. The bill states that the extension of these provisions is subject to federal law or guidance regarding enforcement discretion. Notably, federal HIPAA enforcement discretion is set to end on May 11, 2023, at the end of the federal public health emergency.
  • In Idaho, H 61 was signed into law and becomes effective on July 1, 2023. The bill allows a mental or behavioral health provider who is not licensed in Idaho to provide services via telehealth to an Idaho resident or person located in Idaho. The provider must meet certain qualifications, such as holding a current, valid and unrestricted license in another state with substantially similar requirements to Idaho and not being subject to any past or pending disciplinary proceedings. The provider must also biennially register in Idaho to provide telehealth services.
  • In Washington, SB 5036 was signed into law. As noted in last week’s report, the bill extends the timeframe in which real-time, audio-visual telemedicine services can be used to establish a provider-patient relationship for the purpose of providing audio-only telemedicine for certain healthcare services. Under the bill, a provider can use simultaneous audio and video technology to establish a provider-patient relationship through July 1, 2024, as opposed to the previous deadline of January 1, 2024. The bill suggests that after the 2024 deadline, a provider will need to see a patient in person within a certain time period to establish a provider-patient relationship.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

  • In Kansas (HB 2288), Oklahoma (SB 575) and North Dakota (SB 2187), legislation progressed to establish the Counseling Compact. In Indiana (SB 73) and Washington (HB 1001), legislation progressed to enact the Occupational Therapy Compact and the [...]

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Trending in Telehealth: March 20 – 27, 2023

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 virtual care.

Trending in the past week:

  • Interstate Compacts
  • Medicaid and Private Payor Reimbursement
  • Prescribing
  • Health Practitioner Licensing
  • Behavioral Health

A CLOSER LOOK
Finalized Legislation & Rulemaking

  • In Virginia, the governor signed two bills into law: House bill 1602 (HB 1602) and Senate bill 1418 (SB 1418), which together amend the Medicaid state plan. The bills specify that a healthcare provider duly licensed in the Commonwealth of Virginia who provides healthcare services exclusively through telehealth services is not required to maintain a physical presence in Virginia to be considered an eligible provider for enrollment.
  • In Tennessee, two bills were enacted and signed by the governor: House bill 895 (HB 895) and Senate bill 680 (SB 680). Together the bills clarify that the Medical Assistance Act of 1968 does not require a vendor, healthcare provider or telehealth provider group that provides healthcare services exclusively via telehealth to have a physical address or location in Tennessee in order to be eligible to enroll as a vendor, provider or provider group under the state’s medical assistance program.
  • South Dakota enacted House bill 1183 (HB 1183), which authorizes the state to participate in the interstate compact on occupational therapy licensure. The bill aims to ease the burdens of the licensing process and facilitate multijurisdictional practice for practitioners providing occupational therapy services in person and via telehealth services.

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

  • In Arizona, a Senate bill (SB 1218) passed both chambers and would permit physicians to establish a doctor-patient relationship through “telehealth,” which includes asynchronous store-and-forward technologies, remote patient monitoring services and audio-only telephone encounters. This bill would expand the current law, which only permits real-time audio-visual services to establish a doctor-patient relationship.
  • A Vermont bill (H 411) proposes to extend the state’s telehealth COVID-19 registration for out-of-state healthcare professionals until a permanent telehealth licensure and registration system is operational. The registration, currently set to expire on June 30, 2023, expedites the licensure process for out-of-state healthcare professionals to provide telehealth services in the state. The bill also would extend waivers of certain telehealth requirements. For example, the bill would clarify that the state will not penalize providers for using telehealth services that do not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996. The bill states that the extension of waivers is subject to federal law or guidance regarding enforcement discretion.
  • A Washington Senate bill (SB 5036) passed both chambers and would extend the timeframe in which real-time telemedicine services can be used to establish a provider-patient relationship. Under the bill, a [...]

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Trending in Telehealth: March 13 – March 19, 2023

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
  • Medicaid Reimbursement
  • Prescribing
  • Health Practitioner Licensing
  • Behavioral Health

A CLOSER LOOK
Finalized Legislation & Rulemaking:
It was a relatively slow week for finalized legislation and rulemaking, with the exception of significant activity in Utah:

  • House Bill 159 (HB 159) provides that healthcare practitioners who are licensed outside of Utah may temporarily provide telemedicine services to individuals within the state of Utah if such practitioners receive a temporary telemedicine license. Utah will issue a temporary telemedicine license if a healthcare practitioner completes an application for license by endorsement from the applicable licensing agency and the agency determines that it will not be able to process the application within 15 days after submission.
  • Senate Bill 269 (SB 269) requires the Utah Department of Health and Human Services to apply for a Medicaid waiver and, if the waiver is approved, contract with a single entity to provide coordinated care through certain virtual and electronic services, including telemedicine, video-consults and in-home biometric monitoring, for qualified individuals with certain chronic conditions.
  • House Bill 166 (HB 166) allows for the provision of remote mental health therapy or substance use disorder counseling to Utah patients subject to certain conditions, including but not limited to:
    • The practitioner may not prescribe drugs unless she obtains a license in Utah to do so.
    • The practitioner must know how to access emergency services and resources in Utah, and must be aware of applicable laws and rules regarding required or permitted reporting or disclosure of confidential client communications.
    • The practitioner must notify the Utah Department of Health and Human Services that she is providing such remote services within one day of providing the services.
    • The practitioner must obtain a Utah license within nine months after the day on which she first provides the services remotely in Utah, or if she provides the services remotely to more than one client in Utah.
  • House Bill 152 (HB 152) repealed certain sections of law to clarify that healthcare professionals offering telemedicine services may not diagnose a patient, provide treatment or prescribe a drug based solely on an online questionnaire, an email message or a patient-generated medical history.

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

  • In Montana, a proposed bill (SB 155) would enact the Occupational Therapy Licensure Compact. The compact would ease licensing requirements for occupational therapists providing telehealth services in Montana and facilitate interstate exchanges of licensure and disciplinary information regarding providers between the states that join the compact.
  • In Arizona, a proposed bill (SB 1457) would permit licensed psychologists to prescribe [...]

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Trending in Telehealth: March 6 – March 12, 2023

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
  • Medicaid and Private Payor Reimbursement
  • Prescribing
  • Health Practitioner Licensing
  • Behavioral Health

A CLOSER LOOK
Finalized Legislation & Rulemaking:

  • In Oregon, the Workers’ Compensation Division of the Department of Consumer and Business Services adopted a final rule that updates and incorporates by reference the new medical billing codes and fee schedule for telehealth and telemedicine services published by the American Medical Association. The rule, which becomes effective on April 1, 2023, among other things, specifies that providers should use certain place of service codes to indicate where the provider provides medical services to a patient through telehealth (i.e., place of service code “02” to be used for “Telehealth provided other than in a patient’s home,” and place of service code “10” to be used for “Telehealth provided in a patient’s home.”). The rule also clarifies that modifier 95 should be used when a provider renders synchronous medical services via a real-time interactive audio and video telecommunication system (i.e., technology that permits the provider and patient to hear each other and see each other in real-time).
  • In Colorado, the Department of Health Care Policy and Financing adopted an emergency rule that aims to expand access to healthcare in rural communities by launching two new projects, the Health Care Access Project and the Health Care Affordability Project. The Health Care Access Project will, among other things, increase access to telemedicine, including remote monitoring support, while the Health Care Affordability project aims to modernize the information technology infrastructure of qualified rural providers through shared analytics and care coordination platforms, enabling technologies, including telehealth and e-consult systems, and funding for qualified rural providers to share clinical information and consult electronically to manage patient care. The projects are currently set to commence no earlier than July 1, 2023 and to conclude no later than December 31, 2026.
  • Texas passed two rules: the first rule clarifies that during telehealth sessions, chiropractors must conspicuously display a mandatory notice from the Texas Board of Chiropractic Examiners (Board) that provides patients with the Board’s contact information in the event that the patient wants to issue a complaint against the chiropractor, and the second rule clarifies that licensed marriage and family therapists that provide telehealth services must complete two hours of continuing education in technology-assisted services.

Legislation & Rulemaking Activity in Proposal Phase:
Highlights:

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Trending in Telehealth: February 27 – March 5, 2023

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
  • Medicaid Reimbursement
  • Prescribing
  • Health Practitioner Licensing
  • Behavioral Health

A CLOSER LOOK
Finalized Legislation & Rulemaking: 10

  • Virginia continues to have significant activity:
    • The state’s legislature “enrolled” or agreed to the final version of the Counseling Compact (HB 1433). If signed by the governor, the bill will be effective on January 1, 2024.
    • Virginia legislators also finalized a separate bill (SB 1119) which modifies licensing exceptions for out of state practitioners utilizing telemedicine for patients within the state who are in the same specialty and who belong to the same group practice. The bill was sent to the governor for approval on March 2, 2023.
    • A third bill (HB 1602) approved by legislators among other things, amends the state Medicaid plan by specifying that a health care provider duly licensed in the Commonwealth who provides health care services exclusively through telehealth services will not be required to maintain a physical presence in the Commonwealth to be considered an eligible provider for enrollment.
  • Colorado legislators passed bill (HB 1071) requiring licensed psychologists to obtain a prescription certificate from the Colorado Medical Board to administer or prescribe psychotropic medication via telepsychology. The bill was sent to the governor for approval on March 1, 2023.
  • In Tennessee, the governor signed a bill (SB 1) prohibiting the use of telehealth services for the benefit of a minor with respect to a medical procedure related to discordance between a minor’s sex and identity.
  • Utah legislators agreed to pass a bill (SB 237) that eases the supervision requirements for dental hygienists by authorizing the practice of dental hygiene in a public health setting without general supervision by a dentist, usually via teledentistry and electronic methods, and without a collaborative practice agreement with a dentist under certain conditions. The bill will be sent to the governor for approval.
  • New York has finalized a rule (NY A 2200) providing for patient prescription pricing transparency through “real-time benefit tools” (RTBTs) which are electronic prescription decision support tools that can integrate with a health care provider’s electronic prescribing system. The rule parallels the Medicare Advantage and Part D Drug Pricing Final Rule published by the Centers for Medicare and Medicaid Services which require Part D plans to offer RTBTs to enrollees starting January 1, 2023 so that plan enrollees can access formulary, cost-sharing, and benefit information in real-time and potentially find lower-cost alternatives under their prescription drug plan.

Legislation & Rulemaking Activity in Proposal Phase: 17
Highlights:

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Trending in Telehealth: February 20 – 26, 2023

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

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Trending in Telehealth: February 13 – 19, 2023

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.

Legislation & Rulemaking in Proposal Phase: 36

Highlights:

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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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Illinois Medicaid Program Expands Telehealth Reimbursement Increasing Access to Behavioral Health and Other Critical Services

In an effort to address the need for increased access to behavioral health services, Illinois has passed a series of bills that meaningfully expand the reimbursement of telehealth services delivered to its Medicaid patients. Illinois’ legislators, telemedicine advocates, healthcare providers and patient advocacy groups collaborated in an impressive effort to develop focused and targeted legislative solutions that effectively balance the need to get critical behavioral health services to patients in need with long-standing concerns that increasing access via telehealth will result in greater health care costs to a state already experiencing severe financial challenges.

Governor Bruce Rauner advised that these “initiatives work together to improve the quality of care and hopefully the quality of life for so many Illinoisans suffering from mental health and substance use disorders.” Supporters of the legislation are optimistic that these changes will further expand telehealth programs in Illinois, continuing the growth experienced in the past several years.

As a result of changes to the Illinois Public Aid Code (305 ILCS 5/5-5.25), the following will receive reimbursement from the Department of Healthcare and Family Services (“Department”) for delivering telehealth services that meet applicable requirements:

  • Clinical psychologists
  • Clinical social workers
  • Advanced practice registered nurses certified in psychiatric and mental health nursing
  • Mental health professionals and clinicians who are authorized by Illinois law to provide mental health services to recipients via telehealth (in addition to psychiatrists and federally qualified health centers)

The Department is also required to reimburse any Medicaid certified eligible facility or provider organization that acts as the originating site (i.e., the location of the patient at the time a telehealth service is rendered), including substance abuse centers licensed by the Department of Human Services’ Division of Alcoholism and Substance Abuse.

In addition to these changes, the Illinois Telehealth Act’s definition of a “Health care professional” (225 ILCS 150/5) has been revised to include dentists, occupational therapists, pharmacists, physical therapists, clinical social workers, speech-language pathologists, audiologists, and hearing instrument dispensers. As a result of this change, these professionals are now explicitly subject to the Illinois Telehealth Act’s requirements.

Finally, the Illinois Insurance Code (215 ILCS 5/356z.22) has been amended to require that any individual or group policy of accident or health insurance that provides coverage for telehealth services also provide coverage for telehealth services provided by licensed dietitian nutritionists and certified diabetes educators to senior diabetes patients. The amended section clearly states that this change is intended to “remove the hurdle of transportation for senior diabetes patients to receive treatment.” While this change is a step in the right direction, Illinois remains in the minority as one of the states without a telehealth coverage and/or payment parity law. The vast majority of states have parity laws that, at a minimum, include a coverage requirement, mandating certain types of payors to approve and reimburse certain telehealth encounters the same as they would in-person medical encounters.

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The Illinois legislators who sponsored the passed legislation will be recognized for their efforts [...]

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