The US Drug Enforcement Administration (DEA) and the Substance Abuse and Mental Health Services Administration (SAMHSA) are extending telehealth flexibilities that allow providers to prescribe controlled substances. While the extension is in place, the DEA indicated that, in light of the 38,000 comments it has received, it will be further evaluating its recently proposed rules for post-PHE telemedicine prescription of controlled substances. Learn what stakeholders need to monitor during this time and what may be next from the DEA.
Trending in Telehealth is a series from the McDermott digital health team in which we highlight state legislative and regulatory developments that impact healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate virtual care.
Trending in the past week:
Interstate Compacts
Professional Practice Standards
COVID-19 Licensure Flexibilities
A CLOSER LOOK
Finalized Legislation & Rulemaking
Illinois enacted HB 559, which allows any person who was issued a temporary out-of-state permit by the Illinois Department of Financial and Professional Regulation during the COVID-19 pandemic to continue to practice under her temporary out-of-state permit if she submits an application for licensure by endorsement to the Department on or before May 11, 2023. The legislation allows any such person to continue to practice under his temporary out-of-state permit until the Department issues the license or denies the application, at which time the temporary out-of-state permit will expire. The legislation also updates the definition of “direct supervision” for a speech language pathologist assistant to include video conferencing.
Tennessee enacted HB 498 and companion bill SB 721. The legislation exempts a patient receiving an initial behavioral health evaluation via telehealth from the reimbursement requirement that the patient have an in-person encounter with a healthcare services provider, the provider’s practice group or the healthcare system within 16 months prior to an interactive visit in order to establish a provider-patient relationship for purposes of telehealth.
North Dakota, Montana and Oklahoma enacted legislation (SB 2187, HB 777 and SB 575, respectively) to join the Counseling Compact.
Legislation & Rulemaking Activity in Proposal Phase
Highlights:
Montana progressed legislation to join the Occupational Therapy Compact (SB 155). Meanwhile, Iowa and Indiana progressed legislation to the second chamber (HF 671 and SB 160, respectively) to enact the Counseling Compact. South Carolina introduced legislation (S 610) that would enact the Counseling Compact, and Louisiana introduced legislation (SB 186) to join the Occupational Therapy Compact.
New Hampshire progressed legislation (HB 500) that would modify which controlled substances are permitted to be prescribed via telemedicine. The legislation would allow an advanced practice registered nurse (APRN) to prescribe non-opioid and opioid controlled drugs in schedule II through IV by means of telemedicine after establishing a relationship with the patient. When prescribing a non-opioid or opioid controlled drug classified in schedule II through IV via telemedicine, a practitioner licensed to prescribe the drug must conduct subsequent in-person exams at intervals appropriate for the patient, medical condition and drug, but not less than annually. The legislation further provides that an APRN who prescribes these drugs by telemedicine must obtain oral or written consent for the provision of services through telemedicine from the patient or, if the patient is a minor, from the patient’s parent or guardian unless state or [...]
McDermott’s digital health team continually monitors legal developments affecting all aspects of the remote delivery of care. This inaugural issue of our Of Digital Interest Quarterly Roundup highlights key issues and trends in the first quarter of 2023.
Remote care is an important development in care delivery, but the regulatory patchwork is complicated. Our digital health team works alongside the industry’s leading providers, payors and technology innovators to help them enter new markets, break down barriers to delivering accessible care and mitigate enforcement risk through proactive compliance. Are you working to make healthcare more accessible through telehealth?
Trending in Telehealth is a series from the McDermott digital health team in which we highlight state legislative and regulatory developments that impact healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate virtual care.
Trending in the past week:
Interstate Compacts
Professional Practice Standards
A CLOSER LOOK
Finalized Legislation & Rulemaking
West Virginia enacted Final Rules that create telehealth standards of practice for nurse practitioners. The rules, among other standards, permit a nurse practitioner to use telemedicine technologies that incorporate interactive audio using store and forward technology, real-time videoconferencing, or similar secure video services or real-time audio-only calls to establish a practitioner-patient relationship during the initial provider-patient encounter.
Louisianaadopted rulemaking that establishes telepsychology and telesupervision standards.
Indiana enacted SB 73, which established the Occupational Therapy Licensure Compact. The law becomes effective on July 1, 2023.
Montana enacted legislation, HB 777, to join the Counseling Compact.
Legislation & Rulemaking Activity in Proposal Phase
Highlights:
Montana progressed legislation to the governor to enact the Audiology and Speech-Language Pathology Compact (SB 214) and Occupational Therapy Compact (SB 155). Meanwhile, North Dakota progressed legislation to the Second Chamber (SB 2187) to enact the Counseling Compact.
Oregon introduced legislation (SB 232) that allows out-of-state physicians or physician assistants to provide care to patients located in Oregon in limited circumstances without obtaining full Oregon licensure or the equivalent telehealth licensure. These scenarios include emergencies (as defined by the Oregon Medical Board); consulting with another physician or physician assistant who is licensed in the state, so long as the out-of-state physician does not take on primary responsibility for diagnosis and treatment; providing care when the physician has an established relationship with the patient who is traveling for work, education or vacation; and in cases where the physician has an established relationship and is providing intermittent or temporary follow-up care. The bill further clarifies that the practice of medicine using telemedicine occurs where the patient is physically located.
Montana’s Senate passed HB 676 with amendments and sent the bill back to the state’s House of Representatives for reconciliation. The House of Representatives passed an earlier version of the bill on March 3, 2023. The bill enumerates fundamental parental rights with respect to children, including with respect to a child’s medical care, and requires a health professional to verify the identity of a parent who has given consent through telemedicine at the site where the consent is given.
Why it matters:
Elevated activity involving the adoption of interstate compacts continues. Many states are progressing legislation that would enact various licensure compacts across healthcare professions, easing burdens to licensure and reciprocity for professionals seeking to practice across state lines.
States continue to refine and adopt professional standards for telehealth practice. This week we saw increased adoption of telehealth practice [...]
Trending in Telehealth is a series from the McDermott digital health team in which we highlight state legislative and regulatory developments that impact healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate virtual care.
Trending in the past week:
Interstate Compacts
Telehealth Coverage and Reimbursement
Informed Consent Standards
A CLOSER LOOK
Finalized Legislation & Rulemaking
In North Dakota, HB 1095 was enacted. The legislation requires health carriers to, in part, provide coverage for licensed pharmacists to provide comprehensive medication management, which may be provided via telehealth. North Dakota also enacted HB 1530, which requires that Medicaid cover asynchronous teledentistry.
Florida enacted SB 300. The legislation prohibits physicians from using telehealth to provide abortions or prescribe abortion-inducing medication. It also requires the physical in-person presence of a physician with a patient when an abortion is performed or when abortion-inducing medication is dispensed.
Legislation & Rulemaking Activity in Proposal Phase
Trending in Telehealth is a new series from the McDermott digital health team in which we highlight state legislative and regulatory developments that impact healthcare providers, telehealth and digital health companies, pharmacists and technology companies that deliver and facilitate virtual care.
Trending in the past week:
Interstate Compacts
COVID-19 Extensions for Licensing
Behavioral Health
A CLOSER LOOK
Finalized Legislation & Rulemaking
In Tennessee, HB 729 was signed into law. Under the legislation, a physician available via telephone or telehealth meets the general supervision requirements for a speech language pathologist performing an endoscope. The law becomes effective on July 1, 2023.
In Kentucky, HB 311 was enacted. The legislation prohibits the Department for Medicaid Services and any Medicaid managed care organization from requiring that a health professional or medical group maintain a physical location or address in the state to be eligible for enrollment as a Medicaid provider if the provider or group exclusively offers services via telehealth.
In New Mexico, HB 384 requires the licensing board to issue a telemedicine license to applicants who hold a full and unrestricted license to practice medicine in another state or territory of the United States. The board will establish by rule the requirements for licensure, provided that the requirements are not more restrictive than those required for expedited licensure.
Legislation & Rulemaking Activity in Proposal Phase
Highlights:
In Kansas (HB 2288), Missouri (SB 70), Montana (HB 777) and North Dakota (SB 2187), legislation to establish the Counseling Compact progressed. In Montana (SB 155) and Indiana (SB 73), legislation to enact the Occupational Therapy Compact progressed.
Florida introduced legislation (SB 300) that would prohibit physicians from using telehealth to provide abortions or prescribe abortion-inducing medication. It would also require the physical in-person presence of a physician with a patient when an abortion is performed or when abortion-inducing medication is dispensed.
Maryland progressed legislation (SB 582) that would extend until June 30, 2025, the inclusion of certain audio-only telephone conversations in the definition of “telehealth” in the Maryland Medical Assistance Program, as well as requirements related to reimbursement for telehealth services by the program and certain insurers, nonprofit health service plans and health maintenance organizations.
Georgia proposed legislation (SB 20) that would prohibit insurers from the following:
Requiring prior authorization, medical review or administrative clearance for a telehealth service that would not be required if such service were provided in person
Requiring demonstration that it is necessary to provide a service to a covered person through telehealth
Requiring a provider to be employed by another provider or agency in order to provide a telehealth service when such employment would not be required if the service were provided in person
Denying coverage solely based on the communication technology or application used
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 of virtual care.
Trending in the past week:
Interstate Compacts
COVID-19 Extensions for Licensing
Behavioral Health
A CLOSER LOOK
Finalized Legislation & Rulemaking
In Vermont, H 411 was signed into law. As noted in last week’s report, the bill extends Vermont’s telehealth registration for out-of-state healthcare professionals until a permanent telehealth licensure and registration system is operational. The registration, which was previously set to expire on June 30, 2023, provides a telehealth registration for out-of-state healthcare professionals who file an application and meet certain requirements to provide telehealth services in Vermont, which is more expeditious than the state’s licensure process. The registration is extended until March 31, 2024. The bill also extends certain enforcement discretion provisions. For example, the bill clarifies that the state will not penalize providers for using telehealth services that do not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996. The bill states that the extension of these provisions is subject to federal law or guidance regarding enforcement discretion. Notably, federal HIPAA enforcement discretion is set to end on May 11, 2023, at the end of the federal public health emergency.
In Idaho, H 61 was signed into law and becomes effective on July 1, 2023. The bill allows a mental or behavioral health provider who is not licensed in Idaho to provide services via telehealth to an Idaho resident or person located in Idaho. The provider must meet certain qualifications, such as holding a current, valid and unrestricted license in another state with substantially similar requirements to Idaho and not being subject to any past or pending disciplinary proceedings. The provider must also biennially register in Idaho to provide telehealth services.
In Washington, SB 5036 was signed into law. As noted in last week’s report, the bill extends the timeframe in which real-time, audio-visual telemedicine services can be used to establish a provider-patient relationship for the purpose of providing audio-only telemedicine for certain healthcare services. Under the bill, a provider can use simultaneous audio and video technology to establish a provider-patient relationship through July 1, 2024, as opposed to the previous deadline of January 1, 2024. The bill suggests that after the 2024 deadline, a provider will need to see a patient in person within a certain time period to establish a provider-patient relationship.
Legislation & Rulemaking Activity in Proposal Phase
Highlights:
In Kansas (HB 2288), Oklahoma (SB 575) and North Dakota (SB 2187), legislation progressed to establish the Counseling Compact. In Indiana (SB 73) and Washington (HB 1001), legislation progressed to enact the Occupational Therapy Compact and the [...]
The Biden administration has announced its intent to end the COVID-19 National Emergency (NE) and the COVID-19 Public Health Emergency (PHE) on May 11, 2023 (read our prior article for more information). In response to the COVID-19 pandemic, lawmakers and agencies made legislative and regulatory changes to expand access to telehealth services for individuals. This article explores what will happen to these temporary telehealth benefits at the end of the PHE and NE.
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 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 Virginia, the governor signed two bills into law: House bill 1602 (HB 1602) and Senate bill 1418 (SB 1418), which together amend the Medicaid state plan. The bills specify that a healthcare provider duly licensed in the Commonwealth of Virginia who provides healthcare services exclusively through telehealth services is not required to maintain a physical presence in Virginia to be considered an eligible provider for enrollment.
In Tennessee, two bills were enacted and signed by the governor: House bill 895 (HB 895) and Senate bill 680 (SB 680). Together the bills clarify that the Medical Assistance Act of 1968 does not require a vendor, healthcare provider or telehealth provider group that provides healthcare services exclusively via telehealth to have a physical address or location in Tennessee in order to be eligible to enroll as a vendor, provider or provider group under the state’s medical assistance program.
South Dakota enacted House bill 1183 (HB 1183), which authorizes the state to participate in the interstate compact on occupational therapy licensure. The bill aims to ease the burdens of the licensing process and facilitate multijurisdictional practice for practitioners providing occupational therapy services in person and via telehealth services.
Legislation & Rulemaking Activity in Proposal Phase Highlights:
In Arizona, a Senate bill (SB 1218) passed both chambers and would permit physicians to establish a doctor-patient relationship through “telehealth,” which includes asynchronous store-and-forward technologies, remote patient monitoring services and audio-only telephone encounters. This bill would expand the current law, which only permits real-time audio-visual services to establish a doctor-patient relationship.
A Vermont bill (H 411) proposes to extend the state’s telehealth COVID-19 registration for out-of-state healthcare professionals until a permanent telehealth licensure and registration system is operational. The registration, currently set to expire on June 30, 2023, expedites the licensure process for out-of-state healthcare professionals to provide telehealth services in the state. The bill also would extend waivers of certain telehealth requirements. For example, the bill would clarify that the state will not penalize providers for using telehealth services that do not comply with the requirements of the Health Insurance Portability and Accountability Act of 1996. The bill states that the extension of waivers is subject to federal law or guidance regarding enforcement discretion.
A Washington Senate bill (SB 5036) passed both chambers and would extend the timeframe in which real-time telemedicine services can be used to establish a provider-patient relationship. Under the bill, a [...]
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 Reimbursement
Prescribing
Health Practitioner Licensing
Behavioral Health
A CLOSER LOOK Finalized Legislation & Rulemaking: It was a relatively slow week for finalized legislation and rulemaking, with the exception of significant activity in Utah:
House Bill 159 (HB 159) provides that healthcare practitioners who are licensed outside of Utah may temporarily provide telemedicine services to individuals within the state of Utah if such practitioners receive a temporary telemedicine license. Utah will issue a temporary telemedicine license if a healthcare practitioner completes an application for license by endorsement from the applicable licensing agency and the agency determines that it will not be able to process the application within 15 days after submission.
Senate Bill 269 (SB 269) requires the Utah Department of Health and Human Services to apply for a Medicaid waiver and, if the waiver is approved, contract with a single entity to provide coordinated care through certain virtual and electronic services, including telemedicine, video-consults and in-home biometric monitoring, for qualified individuals with certain chronic conditions.
House Bill 166 (HB 166) allows for the provision of remote mental health therapy or substance use disorder counseling to Utah patients subject to certain conditions, including but not limited to:
The practitioner may not prescribe drugs unless she obtains a license in Utah to do so.
The practitioner must know how to access emergency services and resources in Utah, and must be aware of applicable laws and rules regarding required or permitted reporting or disclosure of confidential client communications.
The practitioner must notify the Utah Department of Health and Human Services that she is providing such remote services within one day of providing the services.
The practitioner must obtain a Utah license within nine months after the day on which she first provides the services remotely in Utah, or if she provides the services remotely to more than one client in Utah.
House Bill 152 (HB 152) repealed certain sections of law to clarify that healthcare professionals offering telemedicine services may not diagnose a patient, provide treatment or prescribe a drug based solely on an online questionnaire, an email message or a patient-generated medical history.
Legislation & Rulemaking Activity in Proposal Phase Highlights:
In Montana, a proposed bill (SB 155) would enact the Occupational Therapy Licensure Compact. The compact would ease licensing requirements for occupational therapists providing telehealth services in Montana and facilitate interstate exchanges of licensure and disciplinary information regarding providers between the states that join the compact.
In Arizona, a proposed bill (SB 1457) would permit licensed psychologists to prescribe [...]
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