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:

• Professional Licensure
• Telehealth Practice Standards
• Medicaid Reimbursement
• Cross-State Licensing Compact

A CLOSER LOOK
Finalized Legislation and Rulemaking

• In Alaska, the Board of Optometry’s final rule from October concerning licensing, continuing education and telehealth standards went into effect on November 15, 2023. The final rule created new standards for optometrists providing services via telehealth. Notably, an optometrist must create a pre-existing optometrist relationship verbally, in writing or through an in-person exam before conducting a patient visit through telehealth, as well as verify the patient’s identity. Additionally, the optometrist also may not determine an ophthalmic prescription used to correct a refractive error based solely on an examination conducted through telehealth.
• The District of Columbia passed legislation requiring professional members of licensing boards to be District residents and to maintain an active, primarily non-telehealth healthcare practice. This legislation was signed by the Mayor of the District of Columbia on November 21, 2023, and will take effect following a 30-day period of congressional review and publication in the District of Columbia Register.
• Florida’s Department of Health issued a final rule, effective December 7, 2023, to update its procedure for healthcare providers licensed in other states and territories to register with the department to provide telehealth services to patients in Florida.

Legislation and Rulemaking Activity in Proposal Phase
Highlights:

• Texas, through the Texas Behavioral Health Executive Council, proposed amendments to §781.323, which would provide clarification regarding telehealth practice requirements for social workers.
• In Utah, the Department of Health & Human Services issued a notice of a proposed rule to update its current telehealth policies, in part to implement the reimbursement provision for audio-only telehealth legislated in H.B. 437, passed in the 2023 general session.
• Washington’s Department of Health published a proposed rule focused on implementing the multistate nurse licensure compact. The department also published a proposed rule that would allow a certified dietitian or nutritionist to provide services in person or through telehealth, as appropriate, based on the needs of the client.

Why it matters:

• Increased Barriers to Telehealth Flexibilities. The end of the COVID-19 public health emergency brought with it the expiration of interstate licensure waivers and the rollback of telehealth regulatory flexibilities across the states. As states continue to assess how the shift in telehealth policies will impact residents, some of the recent legislative and rulemaking activity illustrate the impact of restrictive attitudes toward telehealth on patient care. Some common policy barriers to telehealth include a requirement to establish the provider-patient relationship via an in-person visit prior to a telehealth appointment or the outright prohibition of using telehealth as the sole method used for a prescription or diagnosis. State legislators and regulatory boards must evaluate whether the positives of such requirements are clinically valid and whether more restrictive policies strike the right balance. For example, many such policies cite concerns over potential fraud or overuse and waste connected to telehealth. But policymakers must also assess the risks of limiting telehealth flexibilities, such as a worsening of health inequities, further exacerbation of provider shortages, and barriers to access and continuity of care.
• Telehealth as a Means of Increased Access to Specialty Care. The past two weeks saw an uptick in proposed legislation and rulemaking across a wide variety of disciplines. Telehealth services for specialties with provider shortages such as psychology and social work, as well as for holistic approaches to health such as dietetics, have the potential to expand patient access to care. Another potential benefit of the increased use of telehealth for specialty care is that it can improve coordination of care, enhancing communication among all provider types involved in the care of a patient.