Trending in Telehealth is a new series from the McDermott Digital Health team in which we highlight 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:

• Interstate Compacts

• Medicaid and Private Payor Reimbursement

• Prescribing

• Health Practitioner Licensing

• Behavioral Health

A CLOSER LOOK

Finalized Legislation & Rulemaking:

• In Oregon, the Workers’ Compensation Division of the Department of Consumer and Business Services adopted a final rule that updates and incorporates by reference the new medical billing codes and fee schedule for telehealth and telemedicine services published by the American Medical Association. The rule, which becomes effective on April 1, 2023, among other things, specifies that providers should use certain place of service codes to indicate where the provider provides medical services to a patient through telehealth (i.e., place of service code “02” to be used for “Telehealth provided other than in a patient’s home,” and place of service code “10” to be used for “Telehealth provided in a patient’s home.”). The rule also clarifies that modifier 95 should be used when a provider renders synchronous medical services via a real-time interactive audio and video telecommunication system (i.e., technology that permits the provider and patient to hear each other and see each other in real-time).

• In Colorado, the Department of Health Care Policy and Financing adopted an emergency rule that aims to expand access to healthcare in rural communities by launching two new projects, the Health Care Access Project and the Health Care Affordability Project. The Health Care Access Project will, among other things, increase access to telemedicine, including remote monitoring support, while the Health Care Affordability project aims to modernize the information technology infrastructure of qualified rural providers through shared analytics and care coordination platforms, enabling technologies, including telehealth and e-consult systems, and funding for qualified rural providers to share clinical information and consult electronically to manage patient care. The projects are currently set to commence no earlier than July 1, 2023 and to conclude no later than December 31, 2026.

• Texas passed two rules: the first rule clarifies that during telehealth sessions, chiropractors must conspicuously display a mandatory notice from the Texas Board of Chiropractic Examiners (Board) that provides patients with the Board’s contact information in the event that the patient wants to issue a complaint against the chiropractor, and the second rule clarifies that licensed marriage and family therapists that provide telehealth services must complete two hours of continuing education in technology-assisted services.

Legislation & Rulemaking Activity in Proposal Phase:
Highlights:

• In Arkansas, two Interstate Compact bills passed both chambers, the first (HB 1082) establishes the Occupational Therapy Licensure Compact, and the second (HB 1181) establishes the Counseling Compact. Both bills aim to ease the burdens of the licensing process and facilitate increased access to care through telehealth technology. There is a third bill that recently passed one chamber (SB 91), that if implemented would establish the Audiology and Speech Language Pathology Compact.

• Tennessee proposed two bills (SB 177) and (HB 567) that require the state’s Medicaid program, TennCare, to develop and implement a three-year pilot program to provide remote maternal health services to eligible TennCare beneficiaries. The remote maternal health services include, amongst other services, remote fetal monitoring, remote ultrasound technology and the collection of physiologic data determined to be medically necessary.

• In Mississippi, a House Bill (HB 259) passed both chambers adopting the Occupational Therapy Compact which would increase access to occupational therapy services through the use of telehealth technology.

• Utah proposed to repeal its Online Prescribing, Dispensing, and Facilitation Licensing Act. Under the new bill (HB 152), a provider offering telemedicine services may not diagnose a patient, provide treatment or prescribe a prescription drug based solely on one of the following: 1) an online questionnaire, 2) an email message or 3) a patient-generated medical history.

• In Oklahoma, a proposed bill (HB 1963) would permit the provision of telemedicine services by physicians who are physically located outside of Oklahoma to patients in Oklahoma in certain situations, for example if a physician located outside of Oklahoma is referred by an Oklahoma licensed physician to treat an Oklahoma patient.

Why it matters:

• There continues to be elevated activity surrounding licensure compacts to make it easier for licensed professionals to obtain licenses in various states. 2023 has already seen an uptick in states adopting interstate compacts for a variety of professionals. These state efforts to ease the burdens of the licensing process demonstrate a desire to facilitate multi-jurisdictional practice without states giving up their authority over professional licensure.

• States are taking steps to address health inequities for high-risk populations through virtual and remote services. Tennessee’s legislation surrounding a three-year pilot program to provide remote maternal health services to rural populations demonstrates how states are tackling health inequities and providing care to high-risk populations.

• States diverge on broadening access to virtual care technologies versus implementing in-person health care requirements. As discussed above, while certain states such as Oklahoma are broadening the opportunities for out-of-state providers to provide telehealth services to patients in the state, other states, such as Utah, appear to require providers to integrate in-person requirements to establish a provider-patient relationship prior to treating or interacting with patients.

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