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Trending in Telehealth: August 29 – September 5, 2023

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:

  • Medicaid Reimbursement of Behavioral Health Services
  • Practice Standards for Counselors and Therapists
  • Technology and EHR access


Finalized Legislation and Rulemaking

  • West Virginia enacted emergency rulemaking, effective October 12, 2023, that establishes the scope of practice for the provision of counseling services via telehealth technologies and the process for licensed professional counselors or licensed marriage and family therapists to obtain an interstate telehealth registration with the West Virginia Board of Examiners in Counseling. This rule ensures continuity of care while existing patients are either transitioning to become a resident of another jurisdiction or temporarily located in another jurisdiction.
  • Washington, DC, adopted an emergency rule, effective September 1, 2023, that reimburses the use of audiovisual telehealth visits in the Assertive Community Treatment (ACT) program within DC Medicaid.
  • Mississippi finalized rulemaking, effective October 1, 2023, regarding Medicaid coverage for continuous glucose monitoring services via telemedicine.
  • Oklahoma finalized rulemaking, effective September 11, 2023, that allows for onsite and mobile crisis intervention services to be provided in person or via telehealth.

Legislation and Rulemaking Activity in Proposal Phase


  • California’s state legislature presented AB 1241 to the governor on August 30, 2023. If signed, the bill will loosen certain requirements related to the virtual delivery of care within the Medi-Cal program. Existing law requires providers that furnish services through video synchronous interaction or audio-only synchronous interaction to also either offer those services in person or arrange for a referral to, and a facilitation of, in-person care. That requirement will go into effect by a date set by the State Department of Health Care Services, but no sooner than January 1, 2024. Under AB 1241, providers will instead be required, in the above-described circumstance, to maintain protocols for patient referral to appropriate in-person care when the standard of care cannot be met by video synchronous interaction or audio-only synchronous interaction.
  • California’s state legislature progressed AB 965.The bill is an amendment to the Permit Streamlining Act that would require local agencies that process applications for the construction of broadband projects to simultaneously process multiple broadband permit applications for substantially similar projects under a single permit (so-called “batch broadband permit processing”), with the goal of a more efficient broadband approval process.
  • California also progressed AB 1369 to the Second Committee. This legislation provides that a person licensed as a physician and surgeon in another state would be authorized to deliver healthcare via telehealth to a patient who, among other requirements, has a disease or condition in which there is a reasonable likelihood of death within a matter of months.
  • Alaska proposed rulemaking to [...]

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Health Care Enforcement Roundup: Increased FCA Enforcement Against EHR Companies

The federal government has offered substantial incentives to providers to adopt and use certified electronic health record (EHR) technology. As of October 2018, the federal government had paid over $38 billion in EHR incentive payments through the Promoting Interoperability Program (formerly, the Meaningful Use Program). Other federal health care program policies also encourage use of certified EHR technology through enhanced payments or avoidance of decreased reimbursement. These EHR-related payment policies, however, have triggered increased oversight and enforcement attention on EHR vendors who have allegedly misrepresented the capabilities of their EHR software and allegedly paid kickbacks to customers.

In 2017, DOJ announced a settlement with eClinicalWorks (eCW), an EHR vendor, to resolve an FCA lawsuit originally brought as a qui tam action by a whistleblower. DOJ’s complaint-in-intervention alleged that eCW made material false statements and concealed material facts about the capabilities of its software in connection with the government’s EHR certification process.[1] It also alleged that eCW paid purported kickbacks in connection with certain marketing arrangements (i.e., a referral program, site visit program, and a reference program) with influential customers to induce them to recommend eCW’s EHR software, in violation of the federal Anti-Kickback Statute (AKS).[2]

As part of the settlement, eCW agreed to pay $155 million and to enter into a novel, five-year Corporate Integrity Agreement (CIA) with the HHS OIG. Among other things, the CIA required eCW to engage an independent Software Quality Oversight Organization to assess eCW’s software quality control systems and to regularly report to OIG and eCW on its reviews and recommendations. Further, the CIA required eCW to offer free upgrades and data transfers to its current customers. This was a ground-breaking settlement that raised the question of whether this was the beginning of government and whistleblower attention on (and FCA actions against) EHR vendors. This question was seemingly answered in the affirmative when DOJ announced a second settlement with an EHR vendor in early 2019.

On February 6, 2019, EHR vendor Greenway Health LLC (Greenway) entered into a similar settlement to resolve an FCA case filed by the US Attorney’s Office in Vermont. Interestingly, a whistleblower did not initiate the Greenway case. Rather, DOJ pursued it directly. Like eCW, Greenway faced allegations that its EHR system did not function in the way it represented it during the certification process.[3] One specific allegation was that Greenway provided some customers whose EHR software was improperly calculating certain meaningful use measures (which providers are required to achieve to be eligible for incentive payments) with incorrect calculations in order to enable them to receive incentive payments.[4] According to DOJ, this allegedly caused some Greenway customers to submit false claims to HHS for payment under the Promoting Interoperability Program.

Like in the eCW case, the government complaint against Greenway also alleged that certain payments from Greenway to its customers pursuant to certain reference, referral, and site visit programs [...]

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Order now: The Law of Digital Health Book

Designed to provide business leaders and their key advisors with the knowledge and insight they need to grow and sustain successful digital health initiatives, we are pleased to present The Law of Digital Health, a new book edited and authored by McDermott’s team of distinguished digital health lawyers, and published by AHLA.

Visit to order this comprehensive legal and regulatory analysis, coupled with practical planning and implementation strategies. You can also download the Executive Summary and hear more about how Digital Health is quickly and dynamically changing the health care landscape.

Explore more!

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ONC’s De-Regulatory Announcement Aims at Enticing Industry to Adopt 2015 Edition Criteria

In September, the Office of the National Coordinator for Health Information Technology (ONC) announced that it is scaling back requirements for third-party certification of criteria related to certified electronic health record (EHR) technology (CEHRT). Going forward, ONC will allow health developers to self-declare their products’ conformance with 30 of the 55 certification criteria.

ONC will also exercise discretion and not enforce the requirement that certification bodies conduct randomized surveillance of two percent of the health IT certifications they issue.

Read “ONC’s De-Regulatory Announcement Aims at Enticing Industry to Adopt 2015 Edition Criteria.”

Copyright 2017, American Health Lawyers Association, Washington, DC. Reprint permission granted.

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False Claims Act Settlement with eClinicalWorks Raises Questions for Electronic Health Record Software Vendors

On May 31, 2017, the US Department of Justice announced a Settlement Agreement under which eClinicalWorks, a vendor of electronic health record software, agreed to pay $155 million and enter into a five-year Corporate Integrity Agreement to resolve allegations that it caused its customers to submit false claims for Medicare and Medicaid meaningful use payments in violation of the False Claims Act.

Read the full article.

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OIG Reports More Than $731 Million in Inappropriate Medicare Meaningful Use Payments

The Electronic Health Records (EHR) Incentive Program run by Centers for Medicare and Medicaid Services (CMS) garnered attention again last week following the release of a report by the Office of Inspector General of the US Department of Health and Human Services (OIG) describing inappropriate payments to physicians under the program. The report follows on the heels of a high-profile settlement under the False Claims Act between the US Department of Justice and an EHR vendor related to certified electronic health record technology (CEHRT) used in the EHR Incentive Program (which we’ve previously discussed in-depth).

The OIG reviewed payments to 100 eligible professionals (EPs) who received EHR incentive payments between May 2011 and June 2014 and identified 14 inappropriate payments. OIG extrapolated the results of the review to the 250,470 total EPs who received incentive payments during that time period and estimated that CMS made approximately $729 million in inappropriate EHR incentive payments out of a total of just over $6 billion in such payments during the review period. (more…)

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