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state laws

Trending in Telehealth: November 15 – 28, 2023

by Purnima Boominathan and Angela Irene Theodoropoulos | Dec 1, 2023 | 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 two weeks:

Professional Licensure
Telehealth Practice Standards
Medicaid Reimbursement
Cross-State Licensing Compact

A CLOSER LOOK
Finalized Legislation and Rulemaking

In Alaska, the Board of Optometry’s final rule from October concerning licensing, continuing education and telehealth standards went into effect on November 15, 2023. The final rule created new standards for optometrists providing services via telehealth. Notably, an optometrist must create a pre-existing optometrist relationship verbally, in writing or through an in-person exam before conducting a patient visit through telehealth, as well as verify the patient’s identity. Additionally, the optometrist also may not determine an ophthalmic prescription used to correct a refractive error based solely on an examination conducted through telehealth.
The District of Columbia passed legislation requiring professional members of licensing boards to be District residents and to maintain an active, primarily non-telehealth healthcare practice. This legislation was signed by the Mayor of the District of Columbia on November 21, 2023, and will take effect following a 30-day period of congressional review and publication in the District of Columbia Register.
Florida’s Department of Health issued a final rule, effective December 7, 2023, to update its procedure for healthcare providers licensed in other states and territories to register with the department to provide telehealth services to patients in Florida.

Legislation and Rulemaking Activity in Proposal Phase
Highlights:

Texas, through the Texas Behavioral Health Executive Council, proposed amendments to §781.323, which would provide clarification regarding telehealth practice requirements for social workers.
In Utah, the Department of Health & Human Services issued a notice of a proposed rule to update its current telehealth policies, in part to implement the reimbursement provision for audio-only telehealth legislated in H.B. 437, passed in the 2023 general session.
Washington’s Department of Health published a proposed rule focused on implementing the multistate nurse licensure compact. The department also published a proposed rule that would allow a certified dietitian or nutritionist to provide services in person or through telehealth, as appropriate, based on the needs of the client.

Why it matters:

Increased Barriers to Telehealth Flexibilities. The end of the COVID-19 public health emergency brought with it the expiration of interstate licensure waivers and the rollback of telehealth regulatory flexibilities across the states. As states continue to assess how the shift in telehealth policies will impact residents, some of the recent legislative and rulemaking activity illustrate the impact of restrictive attitudes toward telehealth on patient care. Some common policy barriers to telehealth include a requirement to establish the provider-patient relationship via an in-person visit prior to a telehealth appointment or the outright prohibition of using telehealth as the sole method [...]

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Weight-Loss Programs in Florida: State Law Considerations for GLP-1 Telehealth Providers

by Purnima Boominathan and Jayda Greco | Sep 29, 2023 | Telehealth

As more telehealth providers offer weight-loss programs, they should be aware of the potential impact of state laws and regulations. In this blog post, we take a closer look at Florida’s consumer protection laws regarding weight-loss programs.

OVERVIEW

While many providers are familiar with Florida’s Standards for the Prescription of Obesity Drugs (Fla. Admin. Code 64B8-9.012, see Final with ID: 26115424), providers may not be as familiar with the Florida Commercial Weight-Loss Practices Act. The Commercial Weight-Loss Practices Act, enacted in 2000 (Fla. Stat. 501.057 – Fla. Stat. 501.0581) broadly applies to weight-loss providers, which includes any person engaged in the business of offering services to consumers to assist them in losing weight and making oral or written statements, visual descriptions, advertisements or other representations that have the capacity, tendency or effect of leading consumers to believe that participation in a weight-loss program will result in weight loss. See Fla. Stat. 501.0571(5). Additionally, weight-loss providers are required to:

Provide to a consumer a written, itemized statement of the fixed or estimated cost of the weight-loss program that is being recommended, including all additional products, services, supplements, examinations or laboratory tests the consumer may be required to purchase from the weight-loss provider as part of such program
Disclose the actual or estimated duration of the recommended weight-loss program
Provide, upon request, a copy of the educational and professional experience of the weight-loss provider’s staff
Provide the name, address and qualifications of the person who has reviewed and approved the weight-loss program, according to section 468.505(1)(j)
Produce and distribute to all consumers who inquire about their weight-loss program a palm-sized card with the Weight-Loss Consumer Bill of Rights printed on it
Post conspicuously the Weight-Loss Consumer Bill of Rights at the front registration desk in each weight-loss program location and require every agent, representative, franchisee or independent contractor to post such a bill of rights in a prominent place in every room in which a presentation or sale of a weight-loss program is made or in which a product or treatment is offered for sale

See Fla. Stat. 501.0573.

Notably, the Weight-Loss Consumer Bill of Rights is a required, separate consumer-facing document that requires disclosure that “rapid weight loss may cause serious health problems,” among other safety disclosures and protections intended for disclosure before beginning a weight-loss program.

KEY TAKEAWAYS

Florida’s Commercial Weight-Loss Practices Act is a reminder that telehealth providers should look beyond the telehealth and prescribing regulations in each state. For telehealth providers operating in a number of states, an in-depth review of all of the relevant state laws and regulations is critical to capture the framework of applicable laws and regulations across the spectrum of health and consumer protection. For providers without in-person practice locations, there are often other strategies that meet the relevant requirements and can ensure compliance with these laws.

Telehealth is an important development in care delivery, but the [...]

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Trending in Telehealth: August 1 – 7, 2023

by Patrick Zanayed and Abby Higgins | Aug 14, 2023 | Telehealth

Trending in the past week:

Professional Practice Standards

A CLOSER LOOK
Finalized Legislation & Rulemaking

A law creating the Continuum of Care Program in Arkansas went into effect on July 31, 2023, permitting care coordination of certain reproductive health services to be conducted via telemedicine.
Illinois updated the Hearing Instrument Act, allowing patients 18 years or older to be evaluated for a hearing aid prescription via telehealth. Patients who are 17 years or younger still must have an in-person visit to obtain a prescription. These updates are not effective until January 1, 2024.
The Medical Care Program in Maryland adopted updated standards for physical therapy services provided via telehealth. This update generally aligns those requirements with broader telehealth standards in the state.
Massachusetts passed an emergency rule permitting mobile crisis intervention care to be provided via telehealth and still be eligible for reimbursement under government health care programs. These emergency measures went into effect on August 1, 2023, and will be made permanent pending federal approval.
Oklahoma revised the standards surrounding community mental health centers (CMHCs) and certified community behavioral health clinics to add telehealth encounters to the definition of “face to face” visits. This term is used to determine psychotherapy or therapy services provided by CMHCs, which provide certain assessments and emergency services throughout the community.
The Kentucky Board of Optometric Examiners updated telehealth standards for optometrists, including regulations permitting the provision of services by optometrists physically located outside of Kentucky, via telehealth in certain situations.
Kentucky also passed an emergency rule to address the shortage of social workers. Unlike optometrists, social workers must be physically located within the Commonwealth to use telehealth to care for Kentucky patients.
Texas passed an amendment to the physical therapy practice standards for early childhood intervention care, which permits certain previously onsite-only care to be conducted via telehealth.
New standards related to the use of telemedicine within the practice of occupational therapy in Wisconsin have gone into effect as of August 1, 2023. To note, the initial regulations proposed were not fully accepted, the Wisconsin Occupational Therapists Affiliated Credentialing Board adjusted the regulations after the public comments.

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

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Of Digital Interest Quarterly Roundup | Q1 2023

by McDermott Will & Emery | May 3, 2023 | Telehealth

McDermott’s digital health team continually monitors legal developments affecting all aspects of the remote delivery of care. This inaugural issue of our Of Digital Interest Quarterly Roundup highlights key issues and trends in the first quarter of 2023.

Remote care is an important development in care delivery, but the regulatory patchwork is complicated. Our digital health team works alongside the industry’s leading providers, payors and technology innovators to help them enter new markets, break down barriers to delivering accessible care and mitigate enforcement risk through proactive compliance. Are you working to make healthcare more accessible through telehealth?

Download the report here.

Trending in Telehealth: April 18 – 24, 2023

by Amanda Enyeart and Jayda Greco | Apr 28, 2023 | Telehealth

Trending in Telehealth is a series from the McDermott digital health team in which we highlight state legislative and regulatory developments that impact healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate virtual care.

Trending in the past week:

Interstate Compacts
Professional Practice Standards

A CLOSER LOOK

Finalized Legislation & Rulemaking

West Virginia enacted Final Rules that create telehealth standards of practice for nurse practitioners. The rules, among other standards, permit a nurse practitioner to use telemedicine technologies that incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services or real-time audio-only calls to establish a practitioner-patient relationship during the initial provider-patient encounter.
Louisiana adopted rulemaking that establishes telepsychology and telesupervision standards.
Indiana enacted SB 73, which established the Occupational Therapy Licensure Compact. The law becomes effective on July 1, 2023.
Montana enacted legislation, HB 777, to join the Counseling Compact.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

Montana progressed legislation to the governor to enact the Audiology and Speech-Language Pathology Compact (SB 214) and Occupational Therapy Compact (SB 155). Meanwhile, North Dakota progressed legislation to the Second Chamber (SB 2187) to enact the Counseling Compact.
Oregon introduced legislation (SB 232) that allows out-of-state physicians or physician assistants to provide care to patients located in Oregon in limited circumstances without obtaining full Oregon licensure or the equivalent telehealth licensure. These scenarios include emergencies (as defined by the Oregon Medical Board); consulting with another physician or physician assistant who is licensed in the state, so long as the out-of-state physician does not take on primary responsibility for diagnosis and treatment; providing care when the physician has an established relationship with the patient who is traveling for work, education or vacation; and in cases where the physician has an established relationship and is providing intermittent or temporary follow-up care. The bill further clarifies that the practice of medicine using telemedicine occurs where the patient is physically located.
Montana’s Senate passed HB 676 with amendments and sent the bill back to the state’s House of Representatives for reconciliation. The House of Representatives passed an earlier version of the bill on March 3, 2023. The bill enumerates fundamental parental rights with respect to children, including with respect to a child’s medical care, and requires a health professional to verify the identity of a parent who has given consent through telemedicine at the site where the consent is given.

Why it matters:

Elevated activity involving the adoption of interstate compacts continues. Many states are progressing legislation that would enact various licensure compacts across healthcare professions, easing burdens to licensure and reciprocity for professionals seeking to practice across state lines.
States continue to refine and adopt professional standards for telehealth practice. This week we saw increased adoption of telehealth practice [...]

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Trending in Telehealth: March 6 – March 12, 2023

by Marshall E. Jackson, Jr. and Ashley Ogedegbe | Mar 16, 2023 | Telehealth

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 6 – 12, 2023

by Patrick Zanayed and Angela Irene Theodoropoulos | Feb 16, 2023 | 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 | Feb 8, 2023 | 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 | Jan 24, 2023 | 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 | Jan 19, 2023 | 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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