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

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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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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