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behavioral health

Trending in Telehealth: September 5 – 18, 2023

by Amanda Enyeart and Jayda Greco | Sep 22, 2023 | 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:

Medicaid Coverage
Broadband Access
Behavioral Health and Substance Use Disorder Treatment
Practice Standards Across Licensee Types

A CLOSER LOOK

Finalized Legislation and Rulemaking

California enacted AB 1241, which was presented for signature last week. As noted in our prior updates, the bill will loosen certain requirements related to the virtual delivery of care within the Medi-Cal program.
Maryland made effective a host of non-substantive rulemaking updates related to professional standards for telehealth across a variety of licensee types, including optometrists, massage therapists, social workers, dietitians, chiropractors, audiologists, speech language pathologists, hearing aid dispensers, music therapists, physical therapists, occupational therapists and professional counselors. The final rules provide clarity by removing language regarding the physical location of a practitioner or patient when providing telehealth and by removing ambiguous and other language to be consistent with telehealth regulations adopted by other health occupations boards.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

California progressed several bills to the engrossing and enrolling stage and to the governor for signature.
- AB 965 moved from the second committee to the governor for signature. The bill is an amendment to the Permit Streamlining Act that would require local agencies that process applications for the construction of broadband projects to simultaneously process multiple broadband permit applications for substantially similar projects under a single permit (so-called batch broadband permit processing), with the goal of ensuring a more efficient broadband approval process.
- AB 1369 also progressed from the second committee to the governor for signature. This legislation provides that a person licensed as a physician and surgeon in another state would be authorized to deliver healthcare via telehealth to a patient who, among other requirements, has a disease or condition in which there is a reasonable likelihood of death within a matter of months.
- AB 1478 was enrolled on September 14, 2023. The bill would require the State Department of Public Health to maintain, on its website, a database of referral networks of community-based mental health providers and support services addressing postpartum depression and prenatal care, information on mental health providers and support groups that allow patient-driven care access, including telehealth and virtual care.
- AB 912 was enrolled on September 16, 2023. The bill would authorize school-based health centers to provide primary medical care, behavioral health services or dental care services on site or through mobile health or telehealth.
- AB 48 was sent to engrossing and enrolling on September 13, 2023. The bill would add nursing [...]
  
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Trending in Telehealth: August 29 – September 5, 2023

by Dale C. Van Demark and Jayda Greco | Sep 8, 2023 | Telehealth

Trending in the past week:

Medicaid Reimbursement of Behavioral Health Services
Practice Standards for Counselors and Therapists
Technology and EHR access

A CLOSER LOOK

Finalized Legislation and Rulemaking

West Virginia enacted emergency rulemaking, effective October 12, 2023, that establishes the scope of practice for the provision of counseling services via telehealth technologies and the process for licensed professional counselors or licensed marriage and family therapists to obtain an interstate telehealth registration with the West Virginia Board of Examiners in Counseling. This rule ensures continuity of care while existing patients are either transitioning to become a resident of another jurisdiction or temporarily located in another jurisdiction.
Washington, DC, adopted an emergency rule, effective September 1, 2023, that reimburses the use of audiovisual telehealth visits in the Assertive Community Treatment (ACT) program within DC Medicaid.
Mississippi finalized rulemaking, effective October 1, 2023, regarding Medicaid coverage for continuous glucose monitoring services via telemedicine.
Oklahoma finalized rulemaking, effective September 11, 2023, that allows for onsite and mobile crisis intervention services to be provided in person or via telehealth.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

California’s state legislature presented AB 1241 to the governor on August 30, 2023. If signed, the bill will loosen certain requirements related to the virtual delivery of care within the Medi-Cal program. Existing law requires providers that furnish services through video synchronous interaction or audio-only synchronous interaction to also either offer those services in person or arrange for a referral to, and a facilitation of, in-person care. That requirement will go into effect by a date set by the State Department of Health Care Services, but no sooner than January 1, 2024. Under AB 1241, providers will instead be required, in the above-described circumstance, to maintain protocols for patient referral to appropriate in-person care when the standard of care cannot be met by video synchronous interaction or audio-only synchronous interaction.
California’s state legislature progressed AB 965.The bill is an amendment to the Permit Streamlining Act that would require local agencies that process applications for the construction of broadband projects to simultaneously process multiple broadband permit applications for substantially similar projects under a single permit (so-called “batch broadband permit processing”), with the goal of a more efficient broadband approval process.
California also progressed AB 1369 to the Second Committee. This legislation provides that a person licensed as a physician and surgeon in another state would be authorized to deliver healthcare via telehealth to a patient who, among other requirements, has a disease or condition in which there is a reasonable likelihood of death within a matter of months.
Alaska proposed rulemaking to [...]

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Top Takeaways | 2023 Digital Health Forum | Behavioral Health 2.0: Post-Pandemic Priorities

by McDermott Will & Emery | Aug 1, 2023 | Uncategorized

In this session, the panel discussed the opportunities digital health offers currently for behavioral-health care, and what might be around the corner.

Session panelists included:

Robert Hasty, General Counsel, Pelago (formerly Quit Genius)
Tiffany Lin, Co-Founder and Chief Executive Officer, Daylight Health
William Robinson, Head of Policy and Strategy, Big Health
Moderator: James A. Cannatti III, Partner, McDermott Will & Emery

Top takeaways included:

Accessing quality care. Digital health—including the technology itself and the care models based on it—has become a valuable addition to the healthcare ecosystem, offering increased access to critical behavioral-health care through, for example, 24/7 chat services, that otherwise may be out of reach for patients, especially for those in rural and marginalized communities. It also has played a significant role in destigmatizing behavioral health by breaking down barriers to treatment and providing platforms for individuals to seek support in convenient settings.
Filling the gap. The shortage of clinicians has contributed to a tangible absence of specialty behavioral health providers. One example, pediatric psychiatry, continues to have a high demand but, unfortunately, many patients are met with a low supply of clinicians. Digital health helps fill an important gap in providing access to behavioral-health care.
Hybrid treatment options. Implementing a hybrid treatment model that incorporates digital and in-person touchpoints can optimize scalability in digital healthcare. A hub-and-spoke model, in which digital tools are embedded within existing systems, offers a balance between prioritizing patients’ needs to receive care in a comfortable setting and the importance of assessing and referring individuals with more serious conditions to appropriate outpatient or inpatient programs.
Across the pond. In markets such as the United Kingdom, the National Health Service (NHS) has actively explored and adopted digital-health solutions to enhance patient care and streamline healthcare delivery. In many cases, patients have access to digital-first mental health services at no cost to them. Lessons learned from the UK and other markets may help shape future approaches to digital behavioral health in the United States.
Reimbursement landscape. Coverage and reimbursement often lags behind the science. This is particularly true regarding digital behavioral health. Finding market strategies that allow for patients to access care is critical. Expect to see continued leveraging of business-to-business (B2B) models and value-based care arrangements as new opportunities and approaches are also explored.

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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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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Trending in Telehealth: March 20 – 27, 2023

by Patrick Zanayed and Ashley Ogedegbe | Mar 31, 2023 | Telehealth

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 [...]

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Trending in Telehealth: March 13 – March 19, 2023

by Stacey Callaghan, Amanda Enyeart and Ashley Ogedegbe | Mar 24, 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 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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Trending in Telehealth: March 6 – March 12, 2023

by Marshall E. Jackson, Jr. and Ashley Ogedegbe | Mar 16, 2023 | Telehealth

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 Oregon, the Workers’ Compensation Division of the Department of Consumer and Business Services adopted a final rule that updates and incorporates by reference the new medical billing codes and fee schedule for telehealth and telemedicine services published by the American Medical Association. The rule, which becomes effective on April 1, 2023, among other things, specifies that providers should use certain place of service codes to indicate where the provider provides medical services to a patient through telehealth (i.e., place of service code “02” to be used for “Telehealth provided other than in a patient’s home,” and place of service code “10” to be used for “Telehealth provided in a patient’s home.”). The rule also clarifies that modifier 95 should be used when a provider renders synchronous medical services via a real-time interactive audio and video telecommunication system (i.e., technology that permits the provider and patient to hear each other and see each other in real-time).
In Colorado, the Department of Health Care Policy and Financing adopted an emergency rule that aims to expand access to healthcare in rural communities by launching two new projects, the Health Care Access Project and the Health Care Affordability Project. The Health Care Access Project will, among other things, increase access to telemedicine, including remote monitoring support, while the Health Care Affordability project aims to modernize the information technology infrastructure of qualified rural providers through shared analytics and care coordination platforms, enabling technologies, including telehealth and e-consult systems, and funding for qualified rural providers to share clinical information and consult electronically to manage patient care. The projects are currently set to commence no earlier than July 1, 2023 and to conclude no later than December 31, 2026.
Texas passed two rules: the first rule clarifies that during telehealth sessions, chiropractors must conspicuously display a mandatory notice from the Texas Board of Chiropractic Examiners (Board) that provides patients with the Board’s contact information in the event that the patient wants to issue a complaint against the chiropractor, and the second rule clarifies that licensed marriage and family therapists that provide telehealth services must complete two hours of continuing education in technology-assisted services.

Legislation & Rulemaking Activity in Proposal Phase:
Highlights:

(more…)

Trending in Telehealth: February 27 – March 5, 2023

by Ashley Ogedegbe and Dale C. Van Demark | Mar 13, 2023 | Telehealth

Trending in the past week:

Interstate Compacts
Medicaid Reimbursement
Prescribing
Health Practitioner Licensing
Behavioral Health

A CLOSER LOOK
Finalized Legislation & Rulemaking: 10

Virginia continues to have significant activity:
- The state’s legislature “enrolled” or agreed to the final version of the Counseling Compact (HB 1433). If signed by the governor, the bill will be effective on January 1, 2024.
- Virginia legislators also finalized a separate bill (SB 1119) which modifies licensing exceptions for out of state practitioners utilizing telemedicine for patients within the state who are in the same specialty and who belong to the same group practice. The bill was sent to the governor for approval on March 2, 2023.
- A third bill (HB 1602) approved by legislators among other things, amends the state Medicaid plan by specifying that a health care provider duly licensed in the Commonwealth who provides health care services exclusively through telehealth services will not be required to maintain a physical presence in the Commonwealth to be considered an eligible provider for enrollment.
Colorado legislators passed bill (HB 1071) requiring licensed psychologists to obtain a prescription certificate from the Colorado Medical Board to administer or prescribe psychotropic medication via telepsychology. The bill was sent to the governor for approval on March 1, 2023.
In Tennessee, the governor signed a bill (SB 1) prohibiting the use of telehealth services for the benefit of a minor with respect to a medical procedure related to discordance between a minor’s sex and identity.
Utah legislators agreed to pass a bill (SB 237) that eases the supervision requirements for dental hygienists by authorizing the practice of dental hygiene in a public health setting without general supervision by a dentist, usually via teledentistry and electronic methods, and without a collaborative practice agreement with a dentist under certain conditions. The bill will be sent to the governor for approval.
New York has finalized a rule (NY A 2200) providing for patient prescription pricing transparency through “real-time benefit tools” (RTBTs) which are electronic prescription decision support tools that can integrate with a health care provider’s electronic prescribing system. The rule parallels the Medicare Advantage and Part D Drug Pricing Final Rule published by the Centers for Medicare and Medicaid Services which require Part D plans to offer RTBTs to enrollees starting January 1, 2023 so that plan enrollees can access formulary, cost-sharing, and benefit information in real-time and potentially find lower-cost alternatives under their prescription drug plan.