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Trending in Telehealth: March 5 – March 11, 2024

by Stacey Callaghan and Nathan Gray | Mar 12, 2024 | Telehealth

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 week:

Interstate compacts
Expanding Telehealth

A CLOSER LOOK

Finalized Legislation and Rulemaking:

In South Carolina, the governor signed H 4159, the South Carolina Telehealth and Telemedicine Modernization Act, which establishes uniform baseline standards for all professionals licensed by a licensing board in the state providing services via telehealth. The act also revises the provisions of the Medical Practice Act related to telehealth, including addressing ongoing telehealth treatment provided by an out-of-state physician not licensed in South Carolina, as well as implementing standards for licensees solely providing services via telehealth (including evaluation, recordkeeping, follow-up care and prescribing standards).

Legislation & Rulemaking Activity in Proposal Phase:

Highlights:

In Arizona, SB 1267 passed the first chamber. If enacted, the bill would permit physical therapists to supervise physical therapy assistants through certain telehealth modalities.
In Colorado, HB 24-1048 passed both chambers. If enacted, the bill would specify that an in-person, physical examination of an animal is required to establish a veterinarian-client-patient relationship and would extend that relationship to other licensed veterinarians who share the same physical premises if those other veterinarians have access to and have reviewed the patient’s records. It would also permit veterinarians, with consent of the client, to provide veterinary services—including prescribing medication—via telemedicine to clients and patients located in Colorado with an established veterinarian-client-patient relationship. The bill establishes recording-keeping, confidentiality, and privacy requirements related to the use of telehealth and empowers the Colorado State Board of Veterinary Medicine to issue rules further regulating the use of telehealth. It also permits a license veterinarian to utilize tele-supervision of veterinary personnel if certain conditions are met.
In Hawaii, HB 2079 passed the first chamber. If enacted, this bill would, among other things, allow a practitioner who is licensed in Hawaii to prescribe schedule III and IV controlled substances, including testosterone, for the purpose of providing gender-affirming care while the practitioner is located outside the State and without conducting an in-person consultation with the patient, provided that the practitioner prescribes the controlled substances via a synchronous audio-visual telehealth interaction.
In Idaho, HB 684 passed the first chamber. If enacted, the bill would permit telebehavioral health services to be provided on public school premises.
In Kentucky, SB 111 passed the first chamber. If enacted, the bill would require health benefit plans, limited health service benefit plans, Medicaid, and state health plans to provide coverage for speech therapy provided via telehealth.
In Kentucky, SB 255 passed the first chamber. If enacted, the bill would establish requirements and standards for providing social work services via telehealth.
In Mississippi, HB 177 and SB 2157 both passed the first chamber. If enacted, these bills would enter Mississippi into the Dietician Licensure Compact and the Psychology Interjurisdictional [...]

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Corporate Transparency Act: Key Considerations for Virtual Care Providers

by Lisa Mazur, Stacey Callaghan and Grayson Dimick | Mar 12, 2024 | Telehealth

As of January 1, 2024, the US Corporate Transparency Act (CTA) requires corporations, limited liability companies, limited partnerships and other similar entities to disclose beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN), a bureau within the US Department of the Treasury. Although the US District Court for the Northern District of Alabama declared the CTA unconstitutional in March 2024, the decision in the underlying case is limited to the plaintiff. Therefore, all other entities – including virtual care providers – are still required to comply with the CTA.

Following are key considerations for virtual care providers utilizing friendly PC structures.

Are professional entities (i.e., PCs, PLLCs, PAs) subject to CTA reporting requirements? Yes. The CTA includes certain exemptions, but these are unlikely to apply to a professional entity formed to provide virtual care services.
To whom do CTA reporting requirements apply? The reporting obligation is on the reporting company (i.e., the entity formed by a filing in a US state) – not on the beneficial owners or the person or entity assisting with the formation of the reporting company (i.e., the company applicant, defined as the individual who directly files the document that forms the reporting company and the individual who is primarily responsible for directing or controlling such filing if more than one individual is involved in the filing, with no more than two company applicants). However, individuals and entities other than the reporting company can be held liable for willful violations of the CTA (e.g., an individual who willfully fails to report complete beneficial ownership information or an individual who files – or causes the filer to file – false information with FinCEN).
What reporting is required? The reporting company must visit FinCEN’s Beneficial Ownership Information (BOI) website to complete and file a beneficial ownership information report (BOIR). Reporting companies formed before January 1, 2024, have until January 1, 2025, to file a BOIR; those formed during 2024 must file a BOIR within 90 calendar days of the effective date of formation; and those formed on or after January 1, 2025, will have 30 calendar days to file a BOIR.
Who are beneficial owners? Are friendly physician owners beneficial owners? Reporting companies must identify each of their beneficial owners, defined as any individual who, directly or indirectly, exercises substantial control over the reporting company or who owns or controls at least 25% of the ownership interests in a reporting company. Individuals with substantial control include senior officers (e.g., president, chief executive officer, chief operating officer, chief financial officer and general counsel), as well as anyone who can make important decisions on behalf of the reporting company, including the power to appoint and remove senior officers or a majority of the board of directors (or similar governing body). Accordingly, friendly physician owners are likely to be beneficial owners.
What information must be reported in a BOIR? Reporting companies must provide the following information:

How to Prepare for New State Health Privacy Laws

by McDermott Will & Emery | Mar 8, 2024 | Data Privacy

New state privacy laws regulating health data impose significant obligations and heightened risks. In addition to existing laws in California, Colorado and other states, Washington State’s My Health My Data Act and Nevada’s Consumer Health Data Privacy Law take effect in March 2024 and will require new or updated privacy notices, enhanced consent and many other compliance steps. Increasing regulator scrutiny of these issues and a new private cause of action in Washington make these laws top compliance priorities.

These laws impact entities ranging from healthcare providers and plans handling non-HIPAA health information online to pharmaceutical, fitness, wellness, identity verification and consumer goods companies. Join our health information privacy lawyers Elliot Golding and Sam Siegfried on March 12 to understand how these laws apply to your company and what you need to do now to prepare.

Discussion topics include:

The scope, applicability and requirements under state privacy laws related to health data
A deep dive into complex issues arising under these laws, such as the use of cookies and online tracking technologies
Benchmarking and practical recommendations for complying with these new requirements and building a harmonized compliance program

RESERVE YOUR SPOT

Trending in Telehealth: February 27 – March 4, 2024

by Amanda Enyeart and Nathan Gray | Mar 7, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Expanding telehealth
Regulation of teledentistry

A CLOSER LOOK

Legislation & Rulemaking Activity in Proposal Phase:

Highlights:

In Arizona, HB 2446 passed the first chamber. If enacted, the bill would establish licensing requirements for dietician nutritionists and nutritionists, which would allow for the delivery of dietetic and nutrition services via telehealth.
In Florida, HB 849 passed both chambers. If enacted, the bill would establish requirements for the delivery of veterinary telehealth services by Florida-licensed veterinarians.
In Florida, HB 855 passed both chambers. If enacted, the bill would, among other changes, require dental practice to designate a dentist of record with the Florida Board of Dentistry. It would also require dentists to perform an in-person examination of a patient or to obtain records of an in-person evaluation before initiating orthodontic treatment. The proposal would also require that dentists placing advertisements of dental services provided through telehealth include a disclaimer recommending an in-person examination for each of the following services: an impression or digital dental scan, denture services, placement of an appliance or other structure, and orthodontic treatment. Under the proposal, failure to comply with the evaluation requirement and failure to provide patients with contact information of each dentist who is providing dental services to a patient would be grounds for discipline.
In Georgia, HB 844 passed the first chamber. If enacted, the bill would establish licensing requirements for dietician nutritionists and nutritionists, which would allow for the delivery of dietetic and nutrition services via telehealth.
In Georgia, HB 441 passed the first chamber. If enacted, the bill would, among other requirements, require a dentist intending to provide care via teledentristry to notify the Georgia Board of Dentistry and to provide documentation that the dentist had established a referral relationship with a dentist capable of providing in-person dental care at a location within the state meeting certain geographic requirements. A dentist providing teledentistry would be permitted to authorize dental hygienists to perform certain dental hygiene functions, prescribe noncontrolled prescriptions and authorize the performance of digital scans and the transmission of patient records to the dentist. The proposed bill would require dentists to perform an initial in-person examination and an in-person exam at least once every 12 months to provide teledentistry services to a patient, except for patients seen in certain specified settings. It would also require dentists to obtain written authorization to a patient with information about the treating dentist and dental hygienist and obtain informed consent after providing a written statement advising the patient that teledentistry was not equivalent to an in-person clinical exam and that the dentist would not physically be present. The bill would prohibit an insurer from excluding coverage for a service [...]

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Trending in Telehealth: February 12 – February 26, 2024

by Amanda Enyeart, Dale C. Van Demark and Grayson Dimick | Mar 7, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Professional standards

A CLOSER LOOK

Finalized Legislation & Rulemaking

South Dakota enacted the Counseling Compact, making it the 33rd state to ratify the compact.
South Dakota also adopted HB 1029, which specifies that licensed hearing aid dispensers and audiologists can deliver services via telehealth provided they are of the same quality as services delivered face-to-face.
In Texas, the Commission of Licensing and Regulation adopted rules that reorganize and revise telehealth standards for behavioral analysts. The changes include better aligning the telehealth practice standards with those for other professions regulated by the Department of Licensing and Regulation. Similarly, the Commission of Licensing and Regulation adopted a rule addressing supervision for behavioral analysts, which includes provisions addressing supervision via telehealth.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

In Arizona, SB 1036 passed the first chamber. If enacted, the bill would enact the Social Work Licensure Compact.
In Florida, SB 7016 passed both chambers. If enacted, the bill would enter Florida into the Interstate Medical Licensure Compact.
In Louisiana, the Behavior Analyst Board proposed rules governing behavioral analyst practice, including establishing telehealth practice standards.
In Oklahoma, the Board of Examiners in Optometry proposed rule 505:10-5-19 that would address telemedicine practice by optometrists and, among other things, prohibit an optometrist from prescribing contact lenses or spectacles via a telemedicine encounter. The rule would also establish requirements for informed consent and practice requirements associated with a telemedicine visit.
In Tennessee, SB 2134 and HB 2405 each passed one chamber. If enacted, the bills would enact the Social Work Licensure Compact.
In Utah, SB 24 passed both chambers. If enacted, the bill would require Medicaid reimbursement for telepsychiatric consultations between a physician assistant and a psychiatrist. The law currently requires reimbursement only for telepsychiatric consultations between a physician and a psychiatrist.
In Virginia, HB 326 passed the first chamber. If enacted, the bill would enter Virginia into the Counseling Compact.
In West Virginia, HB 4110 passed the first chamber. If enacted, the bill would authorize the state’s Board of Licensed Dietitians to promulgate a legislative rule relating to telehealth practice, requirements and definitions.
In Wisconsin, SB 158 passed both chambers and awaits the governor’s signature. If enacted, the bill would enact the Social Work Licensure Compact.

Why it matters:

States continue to increase activity surrounding licensure compacts for a variety of health professionals. These state efforts ease the burdens of the licensing process and demonstrate a desire to facilitate multijurisdictional practice without giving up [...]

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Trending in Telehealth: February 5 – 12, 2024

by Amanda Enyeart and Grayson Dimick | Feb 15, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Facilitation of connectivity and data exchange
Professional standards

A CLOSER LOOK

Finalized Legislation & Rulemaking

South Dakota enacted the Social Work Licensure Compact, becoming the second state to enact the compact. Missouri enacted the compact in July 2023. The compact will become active once enacted by seven states. According to the National Center for Interstate Compacts, 24 other states have introduced the compact.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

In Idaho, HB 393 passed the first chamber. If enacted, it would enter Idaho into the Counseling Compact.
In Indiana, SB 132 passed the first chamber. Currently, Indiana law provides that an out-of-state provider licensed in Indiana may not provide telehealth services in Indiana until the provider and their employer/contractor have filed a certification with the Indiana Professional Licensing Agency that the provider and employer/contractor agree to be subject to Indiana jurisdiction and Indiana substantive and procedural laws. If enacted, the bill would remove the requirement to file the certification, though providers would still be subject to Indiana jurisdiction and Indiana substantive and procedural laws, and the provision of health services (rather than the filing of the certification) would constitute a voluntary waiver of other jurisdictional rights.
In West Virginia, HB 5310 passed the first chamber. If enacted, the bill would enact the Remote Patient Outcome Improvement Act to authorize insurers and providers to partner with internet service providers to facilitate the transmission and analysis of vital signs and medical device data.
In Wisconsin, the Marriage and Family Therapy, Professional Counseling and Social Worker Examining Board proposed a rule that would update telehealth practice standards by defining telehealth, creating of a new subsection that establishes standards of telehealth practice, amending the definitions of “face-to-face” and “supervision” to include telehealth practice, and amending of unprofessional conduct provisions to incorporate telehealth practice.

Why it matters:

States continue to increase activity surrounding licensure compacts for a variety of health professionals. These state efforts ease the burdens of the licensing process and demonstrate a desire to facilitate multijurisdictional practice without giving up authority over professional licensure.
Measures emphasizing connectivity and infrastructure complement the increasing availability of reimbursement for remote monitoring and other virtual care modalities. States propose measures such as West Virginia’s Remote Patient Outcome Improvement Act with the expectation that they will help reduce costs of avoidable emergency room and other medical visits when paired with remote monitoring programs.
States continue to amend and clarify professional practice standards for telehealth. With the increase in the delivery of care through virtual modalities, professional boards are adopting standards governing telehealth practice across multiple health professions and revising [...]

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Trending in Telehealth: January 29 – February 5, 2024

by Lisa Mazur and Grayson Dimick | Feb 9, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Medicaid coverage
Private payor coverage

A CLOSER LOOK

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

In Michigan, HB 4579 and HB 4580 passed both chambers. If enacted, the bills would require coverage parity of telehealth services in health plans and Medicaid, respectively.
In New Hampshire, SB 318 passed the first chamber. If enacted, the bill would enter New Hampshire into the Social Work Licensure Compact.
In South Carolina, H 4159 passed both chambers. If enacted, the bill would create a new “South Carolina Telehealth and Telemedicine Modernization Act,” which would regulate all licensees providing services via telehealth. The bill would also revise the Medical Practice Act statutes related to telehealth, including addressing ongoing care provided by an out-of-state physician not licensed in telehealth, as well as implementing standards for licensees solely providing services via telehealth (including evaluation, recordkeeping, follow-up care and prescribing standards).
In South Dakota, HB 1012 and HB 1015 passed the first chamber. If enacted, the bills would enter South Dakota into the Counseling Compact and Social Work Licensure Compact, respectively.
In Tennessee, SB 1862 and HB 1863 passed the first chamber. If enacted, the bills would enter Tennessee into the Dietitian Licensure Compact.
In Tennessee, HB 2461 and SB 1674 passed the first chamber. If enacted, the bills would allow for Tennessee’s Medicaid program to reimburse qualifying remote ultrasound procedures and remote fetal nonstress tests when the patient is in a residence or other off-site location that is separate from the patient’s provider and the same standard of care is met.
In Utah, HB 44 passed both chambers. If enacted, the bill would enter Utah into the Social Work Licensure Compact.
In Utah, SB 24 passed the first chamber. If enacted, the bill would amend the statute providing for Medicaid reimbursement for telepsychiatric consultations to require coverage for telepsychiatric consultations conducted by physician assistants.
In Virginia, SB 2500 passed the first chamber. If enacted, the bill would require the Virginia Department of Medical Assistance Services to modify the state plan for medical assistance to include a provision allowing for reimbursement for remote ultrasound procedures and remote fetal nonstress tests under certain conditions.

Why it matters:

There continues to be an increase in activity surrounding licensure compacts. This includes established compacts, such as the Counseling Compact and Social Work Licensure Compact, as well as the Dietician Licensure Compact, which recently finalized its model legislation and has not yet been enacted in any states. In general, these state efforts ease the burdens of the licensing [...]

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Trending in Telehealth: January 22 – 29, 2024

by Patrick Zanayed and Adetoro Olugbemi | Feb 2, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Scope of practice
Medicaid reimbursement

A CLOSER LOOK

Finalized Legislation & Rulemaking

Arkansas passed final rule, which provides Medicaid coverage for ambulance telemedicine triage services. Specifically, an ambulance service may triage and transport a beneficiary to an alternative destination or treat in place if the ambulance service is coordinating the care of the beneficiary through telemedicine with a physician for a medical-based complaint or with a behavioral health specialist for a behavioral-based complaint.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

Florida proposed a rule to clarify the Board of Psychology’s supervised experience requirements in light of recent statutory changes involving telehealth.
Iowa proposed rules to clarify the scope of practice including recordkeeping, ethical practice standards, and use of telehealth visits for occupational therapists and occupational therapy assistants and physical therapists and physical therapist assistants.
Nevada proposed a rule to define a social workers’ scope of practice and licensure requirements and clarify when services may be provided through telehealth to a client outside the State of Nevada, among other things.
South Carolina progressed H 4159 in the second chamber to enact the South Carolina Telehealth and Telemedicine Modernization Act. The bill defines necessary terms and provides requirements for certain regulated healthcare professionals who provide healthcare by means of telehealth; amends definitions in the medical practice act to define “telehealth”; and amends law relating to the practice of telemedicine to revise requirements for the practice of telemedicine and to include provisions concerning telehealth.
South Dakota progressed HB 1015 in the second chamber to adopt the social work licensure compact.
Utah progressed SB 24 in the first chamber. The bill clarifies the scope of practice of physician assistants to include telepsychiatry services.

Why it matters:

States continue to progress laws clarifying the use of telehealth within a practitioners’ scope of practice. This week, Florida, Iowa, Nevada and Utah proposed rules or progressed legislation clarifying that several healthcare practitioners’ scope of practice include the use of telehealth.

Telehealth is an important development in care delivery, but the regulatory patchwork is complicated. The McDermott 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? Let us help you transform telehealth.

Trending in Telehealth: January 16 – 22, 2024

by Stacey Callaghan and Ashley Ogedegbe | Jan 24, 2024 | Telehealth

Trending in the past week:

Interstate compacts
Behavioral health
Expanding telehealth

A CLOSER LOOK

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

Florida progressed SB 7016, which expands the telehealth minority maternity care pilot program to a statewide program; enacts the interstate medical licensure compact; and enacts the audiology and speech-language pathology interstate compact.
Oklahoma proposed a rule to include the use of telemedicine within the optometrist’s scope of practice under certain circumstances and clarify medication dispensation and storage requirements.
South Dakota progressed HB 1015 to adopt the social work licensure compact.
Texas proposed rule to expand the existing Department of Health’s Emergency Medical Care rules by providing telemedicine options in non-rural counties and expanding the use of telemedicine in rural counties, by integrating the use of telemedicine by Advanced Practice Provider (APP) in Rural Level IV trauma facilities under certain circumstances.
Utah progressed HB 44 to adopt the social work licensure compact.
Wisconsin proposed a rule to amend current standards of practice for supervising physical therapist assistants to incorporate new telehealth practices. Specifically, the current supervision rules require supervision physical therapists to provide on-site assessment and reevaluation of each patient at least once each calendar month or every 10th treatment day, whichever is sooner, while new telehealth practices permit patients to receive treatments using telehealth. The new rule will resolve the conflict between the on-site assessment and reevaluation requirements for supervision and patients’ ability to schedule telehealth visits.
Wisconsin progressed AB 573 and AB 541to the second chamber. AB 573 directs the Department of Health Services to establish a pilot program to implement virtual behavioral health crisis care services for use by county or municipal law enforcement agencies in the field to connect law enforcement officers who encounter persons in crisis to behavioral healthcare services. AB 541 provides that no mental health care provider may be required to be licensed, registered, certified, or otherwise approved to practice in the state to provide mental health services by telehealth to patients located in the state unless mental health care provider satisfies certain conditions.

Why it matters:

There continues to be elevated activity surrounding licensure compacts. This week, Florida, South Dakota and Utah progressed laws to adopt interstate licensure compacts.
States continue to progress laws to incorporate the use of telehealth in practitioners’ scope of practice. This week, several states progressed legislation expanding practitioners’ scope of practice to include telehealth services under certain circumstances.

Trending in Telehealth: January 4 – 15, 2024

by Marshall E. Jackson, Jr. and Adetoro Olugbemi | Jan 23, 2024 | Telehealth

Trending in the past week:

Econsults
Medical cannabis
Out-of-state practitioners

A CLOSER LOOK

Finalized Legislation & Rulemaking

Alaska adopted a final rule, which updates the Board of Professional Counselors regulations related to distance professional services to clarify supervision requirements for distance professional services.
Colorado passed a final rule amending the Medical Assistance Act’s corresponding rules to authorize reimbursement of Electronic Consultation (eConsults) performed through Medicaid’s authorized eConsult platform.
New Jersey enacted SB 3604, which authorizes the use of healthcare platforms that provide discounted prices for payment of prescription and non-prescription drugs or devices and for telehealth and telemedicine services.
Oregon adopted a final rule, which amends Oregon Medical Board Rules (OAR 847-025-0020) to align the rules with the Oregon 2023 Law (SB 232). The amended rule allows out-of-state physicians and physician assistants who have an established relationship with a patient to provide continuity of care via telemedicine on a periodic or intermittent basis when the patient is located in Oregon.
Virginia adopted a final rule establishing applications, licenses, permits, and registrations for its Medical Cannabis Program. The final rule permits practitioners to provide patient care and evaluation using telemedicine, provided that the use of telemedicine follows certain parameters.
Utah adopted a final rule, which moves content governing the Human Services Program Licensing Office’s processes to a new division-wide rule. While the definition of telehealth remains the same, the relevant sections of the law have a new citation.

Legislation & Rulemaking Activity in Proposal Phase
Highlights:

Iowa Board of Speech Pathology and Audiology proposed a rule to rescind Chapter 301, Practice of Speech Pathologists and Audiologists, Iowa Administrative Code, and adopt a new chapter with the same title. The proposed rule will provide definitions relevant to the practice of speech pathologists and audiologists and requirements for telehealth appointments. Further, the rule will articulate practice standards and provide a scope of practice for the profession. Comments are due by January 31, 2024.
Nevada proposed a rule to amend the Board of Examiners for Social Workers rules to prohibit a licensee from providing services through telehealth to a client located outside the State of Nevada unless the licensee is authorized to do so under the laws of the jurisdiction where the client is located.
New Jersey progressed AB 5311 in the second chamber. If passed, the legislation would enact the Counseling Compact in New Jersey.
Tennessee progressed SB 1674, which would amend existing TennCare rules, or promulgate new rules, on fee-for-service and Medicaid managed care plans to allow for the reimbursement of remote ultrasound procedures and remote fetal nonstress tests that utilize established CPT codes for [...]

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