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Trending in Telehealth: June 13 – 21, 2023

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:

  • Telehealth pilot programs
  • Mental health

A CLOSER LOOK

Finalized Legislation & Rulemaking

  • Connecticut enacted HB 6768, which permits physicians, advanced practice registered nurses and physician assistants to certify a qualifying patient’s use of medical marijuana and provide follow-up care using telehealth if they comply with other statutory certification and recordkeeping requirements.
  • Florida enacted HB 5101, which requires each school district to implement a school-based mental health assistance program that provides behavioral health services in-person and supplemented by telehealth.
  • Florida enacted SB 2500, which provides additional funding for telehealth services under the Minority Maternity Care program.
  • Illinois enacted SB 1298, amending the Home and Community-Based Services Waiver Program for Adults with Developmental Disabilities to permit medical and emergency telehealth services for persons with intellectual and developmental disabilities.
  • Louisiana enacted SB 186, adopting the Occupational Therapy Licensure Compact.
  • Louisiana enacted SB 66, which amends the state insurance code by replacing the term “telemedicine” with “telehealth,” for consistency throughout the code. The amendment does not require a provider to have an in-person examination with the patient prior to using telehealth but does require that a referral be made to an in-state healthcare provider or in-state follow-up care be arranged if necessary. The amendment also permits the use of interactive audio without video if, after access and review of the patient’s medical records, the healthcare provider determines that the provider is able to meet the same standard of care as if the services were provided in-person.
  • Louisiana enacted HB 41, which requires health plans to provide equivalent coverage and payments for telehealth occupational therapy services as for in-person services, unless the plan and the provider agree otherwise.
  • Louisiana enacted HB 181, which allows coroners to use telehealth when conducting an examination for an emergency mental health commitment.
  • Texas enacted HB 2727, which amends the requirements for the home telemonitoring program under Medicaid, including reimbursement requirements.
  • Texas enacted HB 617, which establishes a pilot project to provide emergency medical services instruction and emergency prehospital care instruction through a telemedicine medical service or telehealth service provided by regional trauma resource centers to healthcare providers in rural trauma facilities and emergency medical services providers in rural areas.
  • Texas enacted SB 1146, increasing access to telehealth services for inmates. The law requires the Department of Criminal Justice, in conjunction with The University of Texas Medical Branch at Galveston and the Texas Tech University Health Sciences Center, to establish procedures to expand access to telemedicine medical services, telehealth services and onsite medical care [...]

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Top Takeaways | 2023 PPM-ASC Symposium | Leveraging Data Collaborations for Revenue Growth

In this session, the panelists discussed the successes and challenges of a data collaboration between Gastro Health and Lynx.MD, and provided real-world insights into how a physician platform can harness its data to enhance patient care and generate additional revenue while maintaining compliance with applicable privacy and security regulations.

Session panelists included:

  • Omer Dror, Founder and Chief Executive Officer, Lynx.MD
  • Rich Weissmark, Senior Vice President of Strategic Operations, Gastro Health
  • Moderator: Stephen Bernstein, Partner, McDermott Will & Emery

Top takeaways included:

  • Organizing and understanding patient data can require a large up-front investment, as it can be costly, time-consuming and challenging. This is often the largest hurdle in data collaborations; but once that step is addressed, the ability to harness the data for patient care and research can be exponentially valuable over time.
  • Data has a multitude of uses, e.g., internally within a practice to improve patient care and externally with life sciences partners and other stakeholders to analyze trends and forge innovation (provided that data shared externally is properly deidentified, or takes the form of a limited data set that is subject to proper data-use agreements). A physician practice with curated data that can be meaningfully used will be far better positioned to discuss and negotiate value-based care and alternative payment models with various payors.
  • While some data modeling focuses on just one use, the best opportunities may come from innovations that consider all of the other potential uses for the data. The specific disease states that are of interest to clinicians delivering care are often the same as those that interest life sciences companies. As a result, this is an opportunity for cost savings: collecting the data once, transforming it into separate deidentified data cuts and then using it for different purposes, which can include potential revenue-sharing opportunities relative to deidentified data sets.
  • Practices that want to develop data sets and forge data collaborations should act with intention in negotiating contracts that involve data and anticipate what data they may need in the future. If practices give away data rights too soon, it may be difficult to ensure future flexibility and opportunities for that data in the future. Contracts could be with electronic medical records (EMR) companies, pharmaceutical companies and various vendors, so practices should review these contracts closely and try to keep options open for future opportunities.
  • Healthcare data is inherently sensitive and heavily regulated. In addition to putting strong data-governance policies in place that support Health Insurance Portability and Accountability Act (HIPAA) regulations, companies looking to build a data strategy should make sure to consult with legal counsel in developing a plan to use the data. Data privacy and security, deidentification, the creation of limited data sets, data rights, and the level of trust between a physician platform and its data-sharing partners should all be considered before attempting to form a data collaboration.
  • Innovative use of technology and associated data use can be a differentiating factor in recruiting younger physicians who are excited about [...]

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Key Takeaways | Global Perspectives on Data Sharing and Privacy

During this session, the panel discussed strategies and business considerations when addressing compliance with the wide array of data protection and privacy laws and regulations across the United States and abroad. The panel shared insights on compliance and monitoring strategies as well as best practices in working with internal stakeholders.

Session panelists:

  • Rebecca Daley, Esq., Senior Associate Counsel, Office of the General Counsel, University of Maryland Medical System
  • David Linestky, Senior Vice President, Life Sciences, Phreesia
  • Roshal Marshall, Managing Chief Counsel, Enterprise Data Privacy, Security and Technology Law, McKesson Corporation
  • Erik Phelps, Executive Vice President, Chief Administrative and Legal Officer, Tempus Labs, Inc.
  • Sharon Lamb, Partner, McDermott Will & Emery
  • Moderator: Amy Pimentel, Partner, McDermott Will & Emery

Top takeaways included:

  • Saying that the privacy landscape is “dynamic” is an understatement. The rapidly evolving landscape is challenging to operationalize, as many companies find that their lines of business operate under different (and often overlapping) areas of the regulatory framework.
  • As digital health solutions continue to be embedded in traditional health offerings, one challenge that lies ahead is the ability to “future proof” compliance strategies. It will be critical to remain flexible as future collaborations present opportunities for industry growth and development.
  • It is crucial for business leaders to understand their organization’s data collection, storage and sharing processes and how they want to leverage data as an asset. This knowledge is particularly important when designing data strategies, designing notices and consents, and leveraging contractual protections in current and future partnerships.



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Trending in Telehealth: June 6 – 12, 2023

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:

  • Telehealth pilot programs

A CLOSER LOOK

Finalized Legislation & Rulemaking

  • Nebraska enacted LB 227, which amends the definition of the “practice of dietetics and nutrition” to include telehealth services.
  • Nebraska enacted LB 50, which requires the state court administrator to create a pilot program to use physical space and information technology resources within Nebraska courts to serve as points of access for virtual behavioral health services for individuals at court. The pilot program is intended to provide access to confidential, reliable and safe behavioral health treatment via telehealth for individuals involved with the criminal justice system as defendants, probationers or victims in criminal proceedings.
  • Nevada enacted AB 432, which amends state optometry laws to establish requirements for synchronous and asynchronous optometry telemedicine and remote patient monitoring in optometric practice. The law imposes an established patient requirement for certain optometric telemedicine services, meaning that an optometrist must have conducted an in-person “comprehensive evaluation” of the patient within two years before the date of the service. Exceptions to the comprehensive evaluation requirement include synchronous services where the performing optometrist has access to records of a comprehensive examination conducted by another optometrist and certain limited asynchronous evaluations solely to determine whether a comprehensive evaluation is necessary. The law permits optometrists with out-of-state licenses to conduct the limited asynchronous services without a Nevada license. Finally, the law specifically imposes the comprehensive exam requirement with respect to patients who are located outside of the state and are treated by optometrists licensed in Nevada.
  • Oregon enacted SB 232, which allows out-of-state physicians or physician assistants who are not licensed in Oregon to provide care to patients located in Oregon, specifically when the out-of-state physician or physician assistant has established a provider-patient relationship with the patient in Oregon temporarily for the purpose of business, education, vacation or work and such patient requires direct medical treatment by the out-of-state physician or physician assistant. Out-of-state physicians or physician assistants may also provide care for patients with whom they have an established provider-patient relationship to provide temporary or intermittent follow-up. The law further clarifies that the practice of medicine using telemedicine occurs where patient is physically located.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

  • Connecticut progressed SB 1075 in the second chamber. The legislation would require the state’s Department of Public Health to establish, in collaboration with a hospital in the state, a Hospice Hospital at Home pilot program to provide hospice care to patients in the home through a combination of in-person visits and telehealth. If passed, the law would require the Department of Public Health to create [...]

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Inside the ONC’s Plans to Regulate Health AI: Proposal on Predictive Decision Support Interventions

The Department of Health and Human Services Office of the National Coordinator for Health Information Technology (ONC) published a notice of proposed rulemaking on April 18, 2023, titled “Health Data, Technology, and Interoperability: Certification Program Updates, Algorithm Transparency, and Information Sharing,” or HTI-1.

HTI-1 includes proposals that would create new transparency and risk management expectations for artificial intelligence (AI) and machine learning (ML) technology that aid decision-making in healthcare. Importantly, ONC’s proposal includes requirements for a broad set of technologies based on algorithms or models that could be used by many types of users, for any purpose, irrespective of the technology’s risk profile and regardless of who developed the algorithm or model. If finalized, ONC’s HTI-1 proposal for AI/ML technologies they define as “Predictive Decision Support Interventions” will significantly impact the development, deployment and use of AI/ML tools in healthcare. As of June 14, 2023, comments on the HTI-1 proposed rule are due on June 20, 2023.

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Trending in Telehealth: May 31 – June 5, 2023

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
  • Medical Cannabis
  • Mental Health

A CLOSER LOOK

Finalized Legislation & Rulemaking

  • Iowa enacted HF 671, adopting the Professional Counselors Licensure Compact.
  • Minnesota enacted HF 100, permitting the medical sale and use of cannabis through the state’s registry program. HF 100 permits remote pharmacist consultations by secure videoconference, telephone or other remote means, as long as the pharmacist engaging in the consultation is able to confirm the identity of the patient and the consultation adheres to patient privacy requirements that apply to healthcare services delivered through telemedicine. A Minnesota licensed physician, physician assistant or advanced practice registered nurse (APRN) must determine on a yearly basis if the patient continues to have a qualifying medical condition for enrollment on the Division of Medical Cannabis registry.
  • Missouri passed a final rule establishing the Telehealth Dental Pilot Project for Medically Underserved Populations to examine new methods of extending dental care to residents in assisted living facilities, intermediate care facilities, residential care facilities and skilled nursing facilities, and homebound special needs patients. This rule permits the supervision of dental assistants and dental hygienists using telehealth technology.
  • Oklahoma enacted SB 12, creating a mental health transport revolving fund for the Department of Mental Health and Substance Abuse Services. This law permits telemedicine assessments of patients when assessments are requested by sheriffs or peace officers. The state’s criminal code defines the term peace officer as “any sheriff, police officer, federal law enforcement officer, tribal law enforcement officer, or any other law enforcement officer whose duty it is to enforce and preserve the public peace.” Okla. Stat. tit. 21 § 99.
  • Vermont enacted three telehealth-related laws:
    • H 62 adopts the Interstate Counseling Compact to facilitate interstate practice of licensed professional counselors with the goal of improving public access to professional counseling services.
    • H 86 adopts the Audiology and Speech-Language Pathology Interstate Compact, which streamlines the licensure process for audiologists and speech-language pathologists and allows the use of telehealth technology to facilitate increased access to audiology and speech-language pathology services.
    • H 282 adopts the Psychology Interjurisdictional Compact, which regulates the day-to-day practice of telepsychology and streamlines the licensure process for psychologists.

Legislation & Rulemaking Activity in Proposal Phase

Highlights:

  • Connecticut progressed HB 6768, which would permit physicians, APRNs and physician assistants to certify a qualifying patient’s use of medical marijuana and provide follow-up care using telehealth if they comply with other statutory certification and recordkeeping requirements.
  • Louisiana progressed two bills:



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Introducing McDermott’s AI in Healthcare Resource Center

Stay up-to-date and in-the-know on the surge of developments impacting AI in healthcare.

Our global, cross-practice team has curated links to key AI-related resources from legislative and executive bodies, government agencies and industry stakeholders in one easy-access location to help you stay current and engage in the AI conversation. We will continuously update this page as new developments emerge.
You will find:

  • Opportunities for public comment from lawmakers and government agencies to help you shape AI policy
  • Healthcare-specific policy and regulatory initiatives and legislative activity to watch
  • Frameworks, playbooks, whitepapers, blogs and more from key stakeholders
  • Insights and analysis from McDermott’s global healthcare, privacy and health policy leaders

Access now and subscribe for updates. 




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Trending in Telehealth: May 23 – 30, 2023

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:

  • Forensic Examinations
  • Telehealth Flexibilities

A CLOSER LOOK
Finalized Legislation and Rulemaking

  • Florida passed legislation (SB 218) amending Fla. Stat. Ann. § 456.47 to revise the definition of “telehealth provider” to include persons licensed as genetic counselors. By way of background, in 2021, the Florida legislature created a new licensed and regulated profession—genetic counseling. SB 218 is likely one of several pieces of legislation that will incorporate the newly created profession into existing regulatory frameworks.
  • Minnesota enacted legislation (SF 2744) allowing telehealth to factor into the network adequacy assessments required to be performed by health carriers under Minnesota’s insurance laws. Minnesota also enacted appropriations legislation (SF 2995) that, among other things, allocates money for a study of telehealth expansion and payment parity in 2024.
  • Nevada passed legislation (AB 276) amending Nev. Rev. Stat. § 629.515 to authorize a provider who is conducting certain forensic medical examinations on an apparent victim of sexual assault or strangulation to use telehealth to connect to an appropriately trained physician, physician assistant or registered nurse to obtain instructions and guidance on conducting the examination.
  • West Virginia’s legislation requiring hospitals to have a trained healthcare provider available, or transfer agreement as provided in a county plan, to complete a sexual assault forensic examination (SB 89) became effective May 21, 2023, 90 days after its passage. “Available” includes having access to a trained sexual assault forensic examination expert via telehealth.

Legislation and Rulemaking Activity in Proposal Phase
Highlights:

  • Illinois progressed legislation (SB 2123) in the second chamber that would adopt the Counseling Compact.
  • Texas continued to progress legislation (HB 1771) in the second chamber that would require that each agency with regulatory authority over a health professional providing a telemedicine medical service, teledentistry or telehealth to adopt rules necessary to standardize formats for and retention of records related to a patient’s consent to treatment, data collection and data sharing.
  • Texas also progressed legislation (HB 617) in the second chamber that would establish a pilot project to provide emergency medical services instruction and emergency prehospital care instruction through a telemedicine medical service or telehealth service provided by regional trauma resource centers to healthcare providers in rural trauma facilities and emergency medical services providers in rural areas.

Why it matters:

  • Telehealth capabilities can reduce disparities in forensic examinations. States continue to progress legislation aiming to decrease disparities in the quality of forensic examinations by providing expert, live, interactive quality control and evidence-based methodologies to less experienced providers. Proponents argue that partnering on-site staff with telehealth [...]

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Top Takeaways | Successfully Deploying Digital Health in Value-Based Care

In this session from the Value-Based Care Symposium 2023, McDermott Will & Emery Partner Lisa Mazur moderated a panel that explored how digital health tools can support financial and clinical success under value-based care arrangements. Panelists also looked at how digital health companies can successfully demonstrate value within the value-based care framework and make themselves attractive partners to value-based care companies. The panel showcased perspectives from executives at digital health companies and companies participating in value-based care models that have successfully leveraged digital health tools.

Access the full takeaway here.




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Trending in Telehealth: May 16 – 22, 2023

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 Flexibilities

A CLOSER LOOK

Finalized Legislation & Rulemaking

  • The North Carolina General Assembly voted to override Gov. Roy Cooper’s veto of SB 20. Dubbed the Care for Women, Children, and Families Act, SB 20 operates to reduce access to reproductive health services, including by eliminating the provider’s ability to give patients information contained in the relevant consent form over the telephone. The legislation takes effect July 1.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

  • Alaska progressed legislation (SB 75) in the first chamber to join the Audiology and Speech-Language Pathology Interstate Compact.
  • Illinois progressed legislation (SB 2123) in the first chamber to adopt the Counseling Compact.
  • Oregon progressed legislation (SB 232) that would update the Oregon Medical Board’s telemedicine regulations at 52 O.R.S. §§ 677.080 and 677.137 to clarify that the practice of medicine occurs where a patient is physically located.
  • Texas continued to progress legislation (HB 1771) that would require each agency with regulatory authority over a health professional providing a telemedicine, teledentistry or telehealth to adopt rules to standardize formats for and retention of records related to a patient’s consent to treatment, data collection and data sharing.
  • Texas also progressed legislation (HB 617) in the first chamber that would establish a pilot project to provide emergency medical and prehospital care instruction through telemedicine/telehealth services by regional trauma resource centers to healthcare providers in rural area trauma facilities.

Why it matters:

  • Interstate compact adoption remains elevated. States continue to progress legislation that would enact licensure compacts across healthcare professions. This week, Alaska and Illinois took steps to adopt compacts that would ease out-of-state licensure hurdles and improve shared systems across public agencies.
  • Texas addresses rural care via telehealth. Many states are progressing legislation that would permanently extend telehealth flexibilities to allow providers to practice across counties and use technologies to reach and educate patients in rural low-access areas.

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.




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