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 week:

• Expansion of Telehealth Services
• Broadband Access
• Clarity on Supervision Requirements

A CLOSER LOOK

Finalized Legislation and Rulemaking

• Colorado moved, but did not amend or modify, the supervising requirements for physician supervisors to 3 CCR 713-1 Rule 1.15 .
• The District of Columbia finalized and adopted rules for the practice of professional art therapy, addressing practice standards and licensure relating to the use of telehealth in this area of practice.
• Maryland finalized a rule related to participation in the Medicaid program for podiatrists, which includes required compliance with telehealth regulations. Maryland also finalized regulations related to home care for disabled children, allowing care to be provided, under certain circumstances, through “audio-visual telehealth” in accordance with other Maryland telehealth requirements.
• New Hampshire’s governor signed a bill that provides an exception to New Hampshire licensing requirements for out-of-state healthcare professionals treating patients in the custody of the state’s department of corrections, provided the out-of-state healthcare professionals are licensed, certified or registered by and are in good standing with the appropriate licensing body within the professional’s state of practice. The bill goes into effect on October 7, 2023.
• New Hampshire also amended an existing parentage-related law to permit a mental health consultation to be conducted via telehealth. This amendment went into effect on August 19, 2023.
• Oklahoma adopted emergency regulations related to reimbursement by the state Medicaid program, including a new section for definitions and standards for audio-only health services.
• Oregon permanently repealed a rule addressing COVID-19 workplace risks, which in part included telehealth information. This rule had previously been temporarily suspended, so no significant impact is expected.
• South Dakota adopted changes to the licensure regulations for speech-language pathologists, which removes the definition of “telepractice.” The rule now refers to the definitions section of South Dakota codified laws §36-37-1 and §36-37-2.
• Tennessee finalized rules related to healthcare facility licensing, specifically requiring rural emergency hospitals to include a description of additional services provided within the licensing application, citing telehealth services as an example of additional services to be included.
• Texas amended the telemedicine, telehealth and teledentistry rule (§133.30) within the Texas Administrative Code. The amended section implements §413.011 of the state’s Labor Code, which requires the Texas Department of Insurance to adopt healthcare reimbursement policies and guidelines related to workers’ compensation that reflect the standardized reimbursement structures found in other healthcare delivery systems. Interestingly, §413.011 requires the commissioner of workers’ compensation to adopt the current reimbursement methodologies, models and values or weights used by the federal Centers for Medicare & Medicaid Services.
• Washington finalized two rules related to telehealth. The first addresses independent medical examinations (IMEs) and clarifies situations where it is appropriate for IMEs to be conducted via telemedicine. The second rule amends the requirements for telemedicine supervision of medical assistants, defining telemedicine supervision as the delivery of patient care while under the supervision of a provider through telemedicine, as defined in WAC 246-827-0010(10). Of note, for the purposes of supervision of medical assistants, telemedicine does not include facsimile, email or audio-only telephone.
• Wyoming updated reimbursement regulations for federally qualified health centers, (amending Chapter 37 of the state’s Medicaid code. This update includes the addition of a definition for “face to face” visit, which includes telehealth.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

• California’s state assembly has passed two bills relating to telehealth and broadband access. Both bills have moved to the state senate for consideration. The first is the Digital Equity Bill of Rights, which aims to provide broadband access to all state residents. Interestingly, the bill does not create a privacy right of action against the state to enforce the bill, nor does it create an obligation for the state to enforce the bill. The second bill is an amendment to the Permit Streamlining Act, requiring a local agency to undertake batch broadband permit processing, with the goal of a more efficient broadband approval process.
• Maryland proposed updates to the standards for speech-language pathologists, hearing aid dispensers, audiologists and music therapists. The updates include supervision standards and guidelines for telehealth appointments.
• New Hampshire has proposed a rule to update definitions associated with the practice of psychology and psychiatry, with the goal of aligning state definitions with national standards. The proposed rule includes an amendment to describe the initial application process, qualifications, renewals and audits. It also clarifies requirements for a tele-pass license. New Hampshire will host a public hearing on these changes on October 6, 2023.

Why it matters:

• States continue to amend practice standards to incorporate telehealth. Many of the updates this week, including the legislation in Wyoming, Tennessee, the District of Columbia and New Hampshire, reflect changes that will allow for telehealth to be incorporated more broadly across practice areas.
• Importance of technology to access healthcare. The California State Assembly passed two bills that acknowledge the importance of broadband to access healthcare. These actions recognize that broadband access is a key component of facilitating access to healthcare, and the state’s efforts to increase broadband access could help to address gaps in access to healthcare across geographical regions. As a note, these bills have only passed in the California State Assembly and are currently with the California State Senate for consideration.
• States are providing clarity on supervision via telehealth. In a trend we also highlighted last week, states are providing more details and guidance on supervision and practice across jurisdictions. Washington finalized rules updating the medical assistant practice guidelines, specifically addressing supervision via telemedicine. These efforts provide clarity around the intersection of telehealth and the requirements for supervision.

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