As the explosion of telemedicine continues during and, as many expect, after the COVID-19 public health emergency (PHE), state laws and regulations that affect the delivery of telemedicine services continue to expand and contract. In this three-part series, we explore key state regulatory considerations related to the provision of care through telehealth, including state licensure requirements, the establishment of the patient-provider relationship and permissible modalities, and Medicaid and insurance regulations that affect reimbursement and payment parity. Understanding each of these issues on a state-by-state basis is critical to the successful implementation of telemedicine services. 

In Part 1 of our series, we reviewed physician licensure requirements under state medical board regulatory regimes, both during the PHE and, to the extent we know, after. In Part 2 of this series, we will explore various state law approaches to the establishment of the patient-provider relationship and permissible modalities for the delivery of care via telehealth. While intended to provide only illustrative examples across a small sample of states, it is clear even from this high-level survey that telehealth regulations will continue to evolve on a state-by-state basis, and health care providers engaged in cross-border telehealth services must remain vigilant.

ESTABLISHING THE PATIENT-PROVIDER RELATIONSHIP AND THE USE OF VARIOUS TELEHEALTH MODALITIES

In a traditional bricks-and-mortar health care practice, the provider-patient relationship is established through an in-person visit. How and when the patient-provider relationship is established within the context of telehealth is less clear, and states have taken a variety of approaches. The term “modality” refers to the medium by which an encounter takes place between the practitioner and the patient. “Synchronous” modalities are live, real-time interactions between provider and patient, including traditional in-person visits, typically in the office setting; interactive two-way audiovisual technologies, such as Zoom, Facetime, or WebEx; and interactive audio-only technologies, such as telephone. “Asynchronous” modalities, also called “store and forward,” collect patient information for review and interpretation by a health care provider at a later point in time, such as through questionnaires or other written tools capturing medical history and other relevant information provided by the patient. Additionally, “remote patient monitoring,” or “RPM,” allows for direct transmission of a patient’s biometrics, such as blood pressure and temperature, to the health care practitioner.

Some states have specifically addressed whether a particular telehealth encounter is sufficient to establish the provider-patient relationship in accordance with professional standards r. Other states have not expressly addressed the establishment of a provider-patient relationship within the context of telehealth but do address, and in many instances are revising, the modalities available to practitioners for the provision of a telehealth visit. In either case, an emerging trend among states has been to clarify, and in some cases, broaden, the applicable standard or modalities available to practitioners for the provision of a telehealth encounter, generally allowing greater flexibility and convenience for both patient and provider. 

A.    State Laws Explicitly Addressing the Patient-Provider Relationship

Prior to practicing via telehealth, practitioners should be aware of whether the states in which they are active require that the provider-patient relationship be established by a particular modality as well as the various modalities available for the provision of health care services. Additionally, if providers intend to include prescriptions for drugs as part of a telemedicine visit, they should consider whether specific modality requirements will apply. Since the COVID-19 pandemic has increased demand among patients for telehealth services, several states have enacted temporary or permanent requirements, as illustrated by the following:

• Arkansas. Prior to the COVID-19 pandemic, Arkansas did not permit the establishment of the provider-patient relationship through the use of “audio-only communication, including without limitation interactive audio.”¹ Effective April 2021, Arkansas expanded the types of modalities available to establish a patient-provider relationship by removing this prohibition;²  though, it retained its prohibitions on establishing a physician-patient relationship through the following asynchronous modalities: internet questionnaire, email message, patient-generated medical history, text message, and facsimile.³ 

• Delaware. Prior to the COVID-19 pandemic, Delaware required that patients present in-person before telehealth services could be provided. On 18 March 2020, Delaware’s governor signed an emergency order suspending these requirements.⁴ In July of 2021, Delaware’s Telehealth Access Preservation and Modernization Act made this change permanent for all regulated health occupations.⁵ Although the new statute does not enumerate the specific modalities by which the relationship may be established via telehealth, practitioners may do so “only if the provider determines that the provider is able to meet the same standard of care as if the health-care services were being provided in-person,” which includes certain administrative requirements such as authenticating the patient’s location and identity, documentation of informed consent, and a written visit summary.⁶ 

• Hawaii. In June of 2021, the Hawaii Legislature enacted Hawaii Senate Bill 970, which was specifically intended to resolve ambiguity under existing state law regarding whether a patient can use telehealth to establish a relationship with a physician.⁷ Under the new law, the physician-patient relationship may be established via a telehealth interaction, provided that the physician has a license to practice medicine in Hawaii.⁸ Hawaii takes a broad approach to defining telehealth modalities, referring to “the use of information and communications technologies consisting of telephones, remote patient monitoring devices or other electronic means.”⁹

B.    State Laws Expanding Permissible Modalities for the Provision of Telehealth Services

While not explicitly addressing the establishment of a patient-provider relationship, many states, in recognition of the explosion of telehealth throughout the COVID-19 pandemic, have specifically updated their telehealth definitions to clarify which modalities are permissible pursuant to state law. In fact, as telemedicine models evolve to cater to patient convenience, one particularly important question that many states have sought to address is whether asynchronous encounters are permitted. For example:

• New York. In June of 2020, New York expanded its statutory definition of telehealth to include audio-only telephone communication, in addition to the modalities of synchronous two-way audiovisual communication, asynchronous store-and-forward technology, and remote patient monitoring.¹⁰ New York retained its exclusion of facsimiles or electronic messaging alone, unless used in conjunction with another modality.

• Illinois. The Illinois legislature has enacted one of the broadest statutory expansions of telehealth modalities to date. In July of 2021, Illinois expanded the definition of telehealth services to include asynchronous store-and-forward technologies, remote patient monitoring, “e-visits,” and “virtual check-ins.”¹¹ An “e-visit” means a patient-initiated, non-face-to-face communication through an online patient portal between an established patient and a health care professional.¹² A “virtual check-in” means a brief patient-initiated communication using a technology-based service, excluding facsimile, between an established patient and a health care professional (excluding communications from a related office visit provided within the previous seven days as well as communications that lead to an office visit or procedure within the next 24 hours or soonest available appointment).¹³ In addition, the revised statute defines the term “interactive communications system” to mean an audio and video system, an audio-only telephone system (landline or cellular), or any other telecommunications system permitting two-way, synchronous interactive communication between a patient at an originating site and a health care professional or facility at a distant site (but excluding facsimile, e-mail, and text messaging).¹⁴  

• Maine. In June of 2021, Maine broadened its statutory definition of telehealth. Prior to the new law, telehealth referred to the use of “interactive real-time visual and audio or other electronic media,” although it also encompassed asynchronous as well as synchronous modalities. The new definition does not include the “real-time” requirement and has been streamlined to mean “health care services delivered through the use of information technology and includes synchronous encounters, asynchronous encounters, store and forward transfers and telemonitoring.”¹⁵ In addition, Maine also deleted prior language that had excluded audio-only telephone, facsimile, e-mail, and texting.

Other states that have recently modified their statutory terms to expand available telehealth modalities include Arizona, Colorado, Maryland, Massachusetts, Montana, Ohio, Oklahoma, South Dakota, and Washington.¹⁶

Health care providers also should be aware of any limitations on particular modalities in relation to certain treatment activities. For example, although a state may permit asynchronous encounters, it may nonetheless prohibit the use of questionnaires, particularly “static” questionnaires, as a means of clinical evaluation.¹⁷ Additionally, prescribing drugs, in particular prescribing controlled substances, contraceptives, or weight management drugs, may have heightened requirements or may not be permissible at all. For example, the state of Maryland modified its laws in April of 2020 to expressly allow providers to issue prescriptions on the basis of a clinical evaluation that took place in a synchronous or asynchronous telehealth setting, with the exception of Schedule II controlled substances.¹⁸

Finally, it is also important for health care providers to be aware that with the evolving landscape on these issues at the statutory level, there could be a discrepancy between a state’s telehealth statute, on the one hand, and the state’s medical board rules, on the other. Providers should expect further refinement of telehealth standards at the board level to conform to these evolving statutory changes.

In Part 1 of this State Law Telehealth series, we reviewed ever-evolving physician licensure requirements under state medical board regulatory regimes, and in Part 2, we explored various state law approaches to the establishment of the patient-provider relationship and permissible modalities for the delivery of health care via telehealth. In Part 3 of our Telehealth Series, we will explore state law issues regarding reimbursement and insurance parity for telehealth services.

FOOTNOTES

¹ ARK. CODE ANN. § 17-80-403 (2017).

² ARK. CODE ANN. § 17-80-403 (2021).

³ Id.

⁴ JOHN CANEY, SECOND MODIFICATION OF THE DECLARATION OF A STATE OF EMERGENCY FOR THE STATE OF DELAWARE DUE TO A PUBLIC HEALTH THREAT (Mar. 18, 2020).

⁵ DEL. CODE ANN. tit. 24, § 6003 (West 2021).

⁶ Id.

⁷ S.B. 970, 31st Leg., Reg. Sess. (Haw. 2021).

⁸ HAW. REV. STAT. ANN. § 453-1.3 (2021).

⁹ Id.

¹⁰ N.Y. PUB. HEALTH LAW § 2999-cc (McKinney 2021).

¹¹ 225 ILL. COMP. STAT. ANN. 150/5 (West 2021).

¹² Id.

¹³ Id.

¹⁴ Id.

¹⁵ ME. REV. STAT. ANN. tit. 32, § 3300-AA (2021).

¹⁶ See ARIZ. REV. STAT. ANN. § 36-3605 (2021); COLO. REV. STAT. §12-240-104 (West 2021); GA. CODE ANN. §33-24-56.4 (West 2021); MD CODE ANN., HEALTH OCC., §§ 1-1001–1-1006 (West 2021); MASS. GEN. LAWS ANN. ch. 112, § 5O (West 2021).

¹⁷ As distinguished from dynamic questionnaires, which are more adaptive and progressive assessment tools.

¹⁸ MD CODE ANN., HEALTH OCC., § 1-1003 (West 2021).