Trending in Telehealth is a 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 in the past week:

• Telehealth Practice Standards

• Interstate Compacts

• Medical Cannabis

• E-Prescribing

A closer look:

Finalized: 3

• Ohio’s State Medical Board has adopted new telehealth rules via the issuance of three final rules: (1) implementing the requirements of the telehealth statute for physicians (MD, DO, and DPM), physician assistants, dietitians, respiratory care professionals and genetic counselors, (2) regulating controlled substances and telehealth prescribing and (3) rescinding past e-prescribing language. The rules will go into effect on February 28, 2023.

Proposed: 20

Highlights:

• Montana, Virginia, and Washington have proposed enacting the Audiology and Speech-Language Pathology Interstate Compact.

• Wyoming legislation has been approved in both chambers to adopt the Psychology Interjurisdictional Compact, and the approved senate bill to join the Interstate Compact for Licensed Professional Counselors has passed the first committee in the house.

• Virginia has also had an interstate compact bill pass both chambers, with its house bill to join the Counseling Licensure Compact receiving approval in the senate.

• South Dakota has proposed requiring a bona fide patient-patient relationship for the prescription of medical cannabis and disallowing practitioners from conducting the required in-person physical examination via telehealth.

• In contrast, Virginia has proposed legislation to allow certification for the use of medical cannabis for treatment via telemedicine.

Why it matters:

• The Ohio State Medical Board’s new rules clarify telehealth practice standards and e-prescribing use in the state. The rules allow healthcare professionals to provide telehealth services using synchronous or asynchronous modalities. The rules, however, indicate that telephone calls as a synchronous communication technology may only be used for a telehealth service where all elements of a bona fide healthcare visit are met according to the standard of care. Telephone calls that are routine or simply involve communication of information do not constitute a telehealth service. The new rules also enable physicians and physician assistants to provide telehealth services using remote monitoring devices if patient consent is obtained and the devices have been cleared by the FDA and otherwise comply with all federal requirements. In addition, the rules reaffirm that the standard of care for a telehealth visit is the same as the standard of care for an in-person visit. Concerning prescribing activities, the Ohio Board’s rules for remote prescribing draw distinctions between the prescribing of regular prescription medication and controlled substances. Notably, a physician or physician assistant must conduct a physical examination of a new patient prior to prescribing a schedule II controlled substance, subject to some exceptions in which telehealth may be used to meet this requirement if its use is documented in the patient’s medical record. These exceptions include prescribing of controlled substances in the context of hospice or palliative care, medication-assisted treatment for addiction, mental health treatment and emergency situations.

• The push to join interstate licensure compacts continues. As the use of telehealth has drastically increased since the start of the pandemic, the push to join various interstate licensure compacts remains on the rise. The use of compacts in various health fields outside of physician licensure has also been prevalent, including for psychologists, counselors, audiologists and speech pathologists, and other specialists. These compacts represent an opportunity to increase healthcare access while reducing costs and to facilitate the ease of licensure where telehealth practice is authorized.

• For medical cannabis, the future requirements surrounding consults and e-prescribing remain uncertain. Temporary measures during the pandemic allowed patients in various states to gain greater access to consultations for medical cannabis. It remains unclear whether such telehealth services will become permanently approved on a broader level, with such uncertainty particularly heightened by the upcoming termination of the public health emergency declaration.