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HHS OIG Develops Toolkit to Analyze Telehealth Claims to Assess Program Integrity Risks

by James A. Cannatti III, Amanda Enyeart, Marshall E. Jackson, Jr., Lisa Mazur and Dexter Golinghorst | May 12, 2023 | Telehealth

On April 20, 2023, the United States Department of Health and Human Services Office of the Inspector General (HHS OIG) released a new toolkit designed to help analyze telehealth claims to assess federal healthcare program integrity risks. The toolkit is OIG’s latest action in its continued focus on telehealth services that OIG considers to be high risk. The toolkit is based on methodologies highlighted in OIG’s September 2022 data brief, which identified billing practices by Medicare providers that OIG was concerned posed a high risk to program integrity based on a review of Medicare fee-for-service claims data and Medicare Advantage data from March 1, 2020, through February 28, 2021 (OIG Data Brief). The September 2022 OIG Data Brief is discussed in detail in this prior On The Subject article.

OIG intends for the toolkit to be used by public and private parties, including Medicare Advantage plan sponsors, private health plans, State Medicaid Fraud Control Units, and other federal healthcare agencies to analyze program integrity risks and identify providers whose billing may pose a high risk and warrant further scrutiny.

Trending in Telehealth: May 2– 8, 2023

by Lisa Mazur, Amanda Enyeart and Taylor Hood | May 12, 2023 | 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:

Maternal Health
Licensure/Prescription Flexibilities
Interstate Compacts

A CLOSER LOOK

Finalized Legislation & Rulemaking
Highlights:

Georgia enacted SB 106 also known as the Healthy Babies Act. The legislation, sponsored by Senate Majority Caucus Senator Larry Walker III, creates a three-year pilot program for remote maternal health services via the Georgia Department of Community Health. Beginning in FY 2024, the program will provide remote monitoring for pregnant women under the state’s Medicaid program. State legislators prioritized this bill in an effort to increase benefits for at-risk mothers in underserved rural communities. The program’s expanded benefits aim to encourage expecting mothers to utilize prenatal care.
Montana enacted legislation, SB 112, creating a new section related to a pharmacist’s prescribing authority exception. The exception states that a pharmacist may prescribe a drug or device for a legitimate medical purpose, as allowed under this section, for a person with whom the pharmacist has a patient-prescriber relationship. Supporters of the bill cited access-to-care hurdles for rural communities that could otherwise be overcome by allowing pharmacists to serve as a point of first contact. The bill, modeled after similar legislation passed in Idaho, will allow patients to be treated for certain minor conditions without having to visit a doctor’s office. Montana also enacted legislation (SB 214) to enact the Audiology and Speech-Language Pathology Compact and Occupational Therapy Compact (SB 155).
Oklahoma enacted legislation, SB 754, authorizing licensed dentists to allow teledentistry treatment by certain dental hygienists for patients in certain long-term care settings.

Legislation Rulemaking Activity in Proposal Phase
Highlights:

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Teleprescribing of Controlled Substances Temporarily Extended Beyond PHE – What’s Next?

by McDermott Will & Emery | May 10, 2023 | Telehealth

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.

Read the On the Subject here.

Trending in Telehealth: April 25 – May 1, 2023

by Patrick Zanayed and Jayda Greco | May 3, 2023 | 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
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 [...]

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Of Digital Interest Quarterly Roundup | Q1 2023

by McDermott Will & Emery | May 3, 2023 | Telehealth

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?

Download the report here.

Trending in Telehealth: April 18 – 24, 2023

by Amanda Enyeart and Jayda Greco | Apr 28, 2023 | Telehealth

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.
Louisiana adopted 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 [...]

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Trending in Telehealth: April 11 – 17, 2023

by Marshall E. Jackson, Jr. and Jayda Greco | Apr 21, 2023 | Telehealth

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

Highlights:

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Trending in Telehealth: April 4 – 10, 2023

by Dale C. Van Demark and Jayda Greco | Apr 13, 2023 | Telehealth

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
- Requiring a [...]
  
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Trending in Telehealth : March 28 – April 3, 2023

by Stacey Callaghan and Jayda Greco | Apr 6, 2023 | Telehealth

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 [...]

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Preparing for the End of the COVID-19 Emergency: Tri-Agencies Issue FAQs to Assist Plans and Issuers

by McDermott Will & Emery | Apr 3, 2023 | Telehealth

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.

Read the full report.