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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


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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Walking the Fine Line between the Delivery of Health Care Services and Information/Educational Support

The explosion in digital health solutions that connect consumers with licensed health care providers (e.g., nurses, nutritionists, physicians) and laypersons who have certain informal training (e.g., wellness guide, lifestyle coach, outreach partner) has the potential to blur the lines between what constitutes the practice of a licensed health care profession and what does not (usually because the service is intended to be merely informational or educational). Why does it matter which side of the line a particular service falls on? If a service is one that is delivered by a licensed health care professional, there are various state laws and regulations that may govern the activity, and different potential causes of action that may apply in the event a consumer/patient is injured in the process.

  1. If a digital health solution connects a consumer to an individual who is engaged in an activity that is normally performed by a licensed health care professional, state laws and regulations governing health care professionals likely apply.

As background, state professional boards regulate individuals who deliver health care services to the public (e.g., nursing, psychology, medicine, phlebotomy). What falls within the definition of a specific health care service can be very broad and varies state to state.  (more…)

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