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:

• Licensing requirements
• Substance use disorder
• Teleoptometry

A CLOSER LOOK

Finalized Legislation & Rulemaking:

• In Maine¸ the comment period deadline passed for a Department of Professional and Financial Regulation proposed rule, which, in part, implements the legislation to establish telehealth standards, uses, and limitations for the practice of optometry. The proposed rule would establish a comprehensive framework of virtual care delivery, imposing guidelines around scope of practice, underscoring the importance of identity verification, and providing a necessary reminder about the importance of informed consent for telehealth providers. If adopted, the rule would prohibit prescribing to a patient based solely on a static questionnaire and defines telehealth to exclude the provision of optometric services exclusively through an audio-only telephone, email, text messaging, instant messaging or US mail or other parcel service. While the proposed rule states that eye examinations should generally be performed in-person, it allows for a remote interview and examination “if the technology utilized in a telehealth encounter is sufficient to establish an informed diagnosis” as though care had been delivered in person.
• In Nevada, the Board of Psychological Examiners adopted a final rule relating to the supervision of psychological assistants, psychological interns, and psychological trainees. The regulation imposes additional duties on the supervisor to ensure that “a psychological trainee receives at least 1 hour of individual supervision for each 10 hours of service delivery per week.” Notably, the regulation specifies that “service delivery” means “activities that involve direct contact with a client in-person or through telehealth.” Nevada currently defines “telehealth” as “the delivery of services from a provider of health care to a patient at a different location through the use of information and audio-visual communication technology, not including standard telephone, facsimile or electronic mail.”
• The Oregon Criminal Justice Commission adopted a final rule to administer the state’s Jail-based Medications for Opioid Use Disorder Grant Program. The program will provide $10 million in funding to develop substance-abuse recovery programs to adults in custody. Under the rule, applicants for the grant must describe how the funds will be used to meet one of four requisite aims, including the provision of “medication, telemedicine, or any other reasonable treatment to persons in custody with an opioid disorder.”

Why it matters:

• Regulators are adapting to the evolving healthcare delivery landscape. States continue to authorize telehealth care delivery for a wider range of practitioners. As evident from the proposed rule in Maine, however, such new authorizations can come with a myriad of compliance considerations, including obtaining informed consent, restrictions around prescribing, as well as heightened privacy and security concerns.
• Regulators disavow a one-size-fits-all approach for virtual care delivery. As legislators and regulators become increasingly sophisticated as to the various telehealth modalities, they are tailoring their statutory and regulatory compilations to account for the diversity of telemedicine approaches. This has manifested in more specific definitions of “telehealth” as well as modality-specific guidelines, such as Maine’s proscription against prescribing solely on a static questionnaire and Nevada’s specification of “audio-visual communication technology” in its definition of “service delivery.”
• Telemedicine continues to increase access to care delivery. Programs such as the Jail-based Medications for Opioid Use Disorder Grant Program in Oregon can make use of telehealth to provide care to underserved populations, such as incarcerated persons.

Telehealth is an important development in care delivery, but the regulatory patchwork is complicated. The McDermott 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.

Amrita Krishnan, a summer associate, contributed to the development of this blog post.