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:

• Update to Standards of Care

• Youth Programs

A CLOSER LOOK

Finalized Legislation and Rulemaking

• Louisiana finalized regulations (beginning on page 21) related to Early and Periodic Screening, Diagnosis and Treatment (EPSDT). The regulations exclude telemedicine as a covered service for consultations but do state that telemedicine is an “applicable service method.” Specifically, the new regulations state that “[w]hen otherwise covered by Louisiana Medicaid, telemedicine/telehealth is allowed for all CPT codes located in Appendix P of the CPT manual. This service is available to all Medicaid individuals eligible for EPSDT.”

• Ohio adopted rules related to the use of telehealth by Ohio State Chiropractic Board licensees, amending the practice guidelines for chiropractors in the state. This update includes information on approved modalities, allowing the use of both synchronous and asynchronous technologies. This new rule also explicitly states that an Ohio license is required for practicing within the state.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

• California’s state legislature has passed AB 1241, which relates to the Medi-Cal program. Existing law requires providers furnishing services through video synchronous interaction or audio-only synchronous interaction to also either offer those services in-person or arrange for a referral to and facilitation of in-person care by a date set by the department, but no sooner than January 1, 2024. AB 1241 would instead require a provider to maintain protocols for patient referral to appropriate in-person care when the standard of care cannot be met by video synchronous interaction or audio-only synchronous interaction. This has passed both houses of the California State Legislature, with amendments being accepted by the California State Assembly on August 24, 2023. It now heads to the governor.

• Florida has proposed an amendment to the registration regulations for out-of-state providers providing care via telehealth. While not incredibly substantive, the amendment updates the application that out-of-state providers must submit to practice within the state. The updated application is not yet available.

• Louisiana has proposed changes (beginning on page 143) to certain regulations related to the provision of care to School-Based Health Centers (SBHCs). This includes a proposed regulation for SBHCs to provide convenient access to preventive and acute care services for students who might otherwise have limited or no access to healthcare, including through telehealth.

• New Jersey has proposed adding definitions to regulations related to the home health standards of care for telehealth and telemedicine in order to keep abreast with newer technology. Specifically, the amended N.J.A.C. 8:42-6.7 would permit the telehealth services to be offered in addition to, but not in lieu of, direct patient care.

• Tennessee has a fast-moving bill that has passed the state senate and establishes the Temporary Youth Mental Health Services Program. This bill requires reimbursement of providers who participate in the program for each mental health session with a youth, either in-person or via telehealth, up to a maximum of three sessions per client. Tennessee’s Department of Mental Health & Substance Abuse Services may reimburse a provider for additional sessions, subject to available funding.

Why it matters:

• States continue to amend practice standards to incorporate telehealth. As we have discussed in previous weeks, states continue to update various standards of care to include details on treatment provided via telehealth. This includes changes that expand services to incorporate telehealth (such as New Jersey’s proposed regulation related to care provided in a home health setting and Ohio’s update to the standards of care for chiropractic medicine), as well as those that limit its use (such as Louisiana’s EPSDT update).

• This week, we have seen regulations related to youth services. Two states have proposed regulations or laws related to the provision of care to youths, including specific coverage of telemedicine services. Tennessee’s senate has passed a bill that would require reimbursement for mental health sessions with a youth, including those via telehealth. Louisiana has proposed changes to its School-Based Health Center regulations that aim to support those who have limited access to care, including coverage for services provided via telehealth. These two changes, along with others we’ve seen in this space recently, highlight coverage for expanded services provided via telehealth and underscore a focus on care for minors.