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Enhanced Nurse Licensure Compact Eases the Practice of Nursing across State Lines

by Lisa Mazur and Sandra M. DiVarco | Aug 28, 2017 | General Interest, Telehealth

The Enhanced Nurse Licensure Compact (Compact) has now been adopted by 26 states, which means the Compact will be taking effect on January 19, 2018. Nurses who seek to practice telemedicine and deliver in-person care across state lines and who meet the Compact’s licensure requirements in these states will have one less obstacle to overcome going forward.

The Compact is an updated version of the original compact allows for registered nurses (RNs) and licensed practical/vocational nurses (LPN/VNs) to have one multistate license, which will enable them to practice nursing in person or via technology (e.g., videconference) in both their home state, as well as the other Compact states. Development and implementation of the Compact was not an easy feat, given the need for alignment of licensing standards across the Compact states, including federal and state fingerprint-based criminal background checks.

The 26 states participating in the Compact as of today are Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Iowa, Kentucky, Maine, Maryland, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

For more information about the Compact, please visit: https://www.ncsbn.org/11070.htm.

Texas Changes its Tone on Telemedicine

by McDermott Will & Emery and Lisa Mazur | Jun 1, 2017 | Mobile Apps, Telehealth, Text Messaging

As one of the last states to retain highly restrictive (and arguably anti-competitive) telemedicine practice standards, health care providers, regulatory boards, technology companies, payors and other stakeholders have been actively monitoring Texas’ approach to telemedicine regulation and the related Teladoc case. Texas has eliminated its most restrictive requirement for delivering care via telemedicine in Texas, increasing opportunities for providers to reach patients using technology. Senate Bill 1107 was passed on May 11, 2017, and the House added an amendment in passing Senate Bill 1107, which was approved in the Senate on May 18. The bill was signed into law by Governor Abbott last weekend.

Read the full article.

Utah Provides Structure to Telehealth, Expands Access to Mental Health in Proposed Bill

by McDermott Will & Emery, Lisa Mazur and Marshall E. Jackson, Jr. | Mar 13, 2017 | General Interest, Telehealth

Utah is one of the many states that started off 2017 with proposals to change its existing telehealth laws and regulations. Proposed Utah HB 154 (the Proposed Bill), endorsed by Ken Ivory and Allen Christensen, amends the regulatory infrastructure for telehealth, with a focus on mental health. Two of the key components of the Proposed Bill are listed below:

The Proposed Bill creates a scope of telehealth practices within the Utah Health Code. Under the scope of practice requirements, any provider using telehealth to provide care will be held to the same standard of care as that applicable to in-person care. In addition, the Proposed Bill stipulates that a provider may not prescribe using telehealth unless the provider has obtained the patient’s relevant clinical history and documented the relevant clinical history and current symptoms. The provider must also be available for follow-up care and familiar with available medical resources near where the patient was located during the telehealth consult.
The Proposed Bill enacts a new provision to the Utah Medical Assistance Act specifically enabling the provision of mental health services—treatment of mental conditions that are approved in the DSM-V—via telehealth technologies. This provision of the Proposed Bill is Utah’s attempt to increase access to behavioral and mental healthcare services in Utah. In particular, the DSM-V addresses substance abuse disorders as mental health disorders, and the telehealth provision will enable providers to help treat addiction using telehealth services where treatment facilities may not otherwise be available. Importantly, the Proposed Bill’s Medical Assistance Act amendment applies to any managed care organization that contracts with Medicaid, or any provider who is reimbursed under the Medicaid program, and requires insurers to disclose whether they provide coverage for telehealth services for mental health as part of the price and value comparison requirement under Utah law.

The Proposed Bill was passed by both the Utah House of Representatives and Senate and was enrolled on February 24, 2017. The Proposed Bill now awaits Governor Gary Herbert’s signature. If approved, the Proposed Bill will greatly expand access to health care for the mentally ill in Utah, and additionally provide more guidance to assist in the expanded use of telehealth and telemedicine services within the state.

Texas to Take a Leap Forward in Telehealth – A Proposed Bill Drops the Controversial In-Person Evaluation Requirement

by McDermott Will & Emery, Dale C. Van Demark, Lisa Mazur and Marshall E. Jackson, Jr. | Mar 9, 2017 | General Interest, Telehealth

Texas telehealth requirements will significantly change in the near future if Texas Senate Bill 1107 is passed into law, as it removes the controversial “face-to-face” or in-person consultation requirement to establish a physician-patient relationship and lawfully provide telehealth and telemedicine services within the state. This bill comes after a six-year-long battle between telemedicine stakeholders and the Texas Medical Board, and will better align Texas’ regulations with those found in other states.

Read the full article.

Arkansas is at it Again! Telemedicine Regulation in Arkansas Undergoes Additional Change

by McDermott Will & Emery, Lisa Mazur and Marshall E. Jackson, Jr. | Mar 6, 2017 | Telehealth

Arkansas currently has one of the most restrictive telemedicine environments in the country, and was one of the last states to require an in-person examination to form a provider-patient relationship. Prior to September 2016, Arkansas telemedicine laws required an initial in-person encounter to establish a valid physician-patient relationship. In September 2016, the state expanded the formation of a provider-patient relationship to include a face-to-face examination using both real time audio and visual telemedicine technology that provides information at least equivalent to the information that would have been obtained through an in-person examination.

Then, early last month, Arkansas Senate’s Public Health, Welfare and Labor Committee approved Senate Bill 146, which was signed by the Governor and became Arkansas Act 203 on February 20th, which further amended the state’s telemedicine laws to, among other things, enable patients to access telemedicine services from their home or other remote locations. The Act modified the “originating site” location requirement, redefining “originating site” to permit services to be provided wherever the patient is located at the time of the consult. While this change has the potential to expand the use of telemedicine in Arkansas, the Act added more to its restriction on the formation of a professional relationship through telemedicine, as it states that a professional relationship cannot be formed through an internet questionnaire, email message, patient-generated medical history, audio-only communication, text messaging, fax machine or any combination of these technologies. This provision reaffirms that a patient relationship can only be formed in Arkansas with an Arkansas-licensed provider utilizing both real time audio and visual technology.

Notably, the Act also has implications for school-based telemedicine programs, which are increasing in popularity across the country. Arkansas requires school-based telemedicine programs that treat Medicaid recipients to utilize either the minor’s regular pediatrician or other primary care physician; a physician with a cross-coverage arrangement with the regular pediatrician or primary care physician; or have authorization from the regular pediatrician or other primary care physician of the minor. (In most cases, school-based telemedicine programs require a parent’s consent for telemedicine services, and a child’s pediatrician or other primary care provider is notified after the child treated via telemedicine.) This specific provision is particularly protective of the role of treating physicians, but does not include the requirement that a parent or guardian have the power to consent to the formation of a physician-patient relationship with a minor, which is ordinarily expected.

In sum, while the law will not make Arkansas a leader in expanded access to telemedicine, it will help bring Arkansas into line with the rest of the US.

Commercial Insurers Urge Congressional Budget Office to Consider their Telemedicine Data

by Lisa Mazur | Oct 28, 2016 | General Interest, Telehealth

In hopes of expanding reimbursement opportunities for telemedicine services in the Medicare program, representatives of eleven payers, including Aetna, Anthem, Blue Cross Blue Shield of Tennessee, Cambia Health Solutions and Humana, asked CBO director Keith Hall in a public letter to consider their data when evaluating the impact of Medicare coverage of telemedicine services.

Medicare reimbursement for telemedicine is currently limited to very narrow set of circumstances. Section 1834(m) of the Social Security Act provides that telehealth services are covered only if the Medicare patient is seen: (a) at an approved “originating site” (e.g., physician offices, hospitals, skilled nursing facilities) that is located within a rural Health Professional Shortage Area (HPSA) that is either outside of a Metropolitan Statistical Area (MSA) or in a rural census tract, or a county outside of a MSA; (b) by an approved provider (e.g., physicians, nurse practitioners, clinical psychologists); (c) for a defined set of services, including consultations, office visits, pharmacological management, and individual and group diabetes self-management training services; and (d) using certain telecommunications technologies.

There are bipartisan efforts currently underway to expand Medicare reimbursement for telemedicine services by easing or eliminating some of these requirements. One example is the CONNECT for Health Act. Because coverage of telemedicine services in Medicare’s fee-for-service program is limited, there is limited Medicare data available for the CBO to consider when reviewing the potential financial impact of such legislation. In light of this lack of data, the insurers advise that the CBO should consider the effects that telemedicine’s expansion in the commercial market. The insurers’ letter to the CBO also points out that new alternative, quality-based payment models rely upon telemedicine as a means of meeting certain performance measures, and other government agencies, such as the US Department of Defense and the Veterans Administration, are using telemedicine services to provide better quality care.

Earlier this year, the CBO and MedPAC received a letter from over 20 different health care providers similarly urging it to consider alternative data sources, such as data from the commercial sector, when analyzing the costs and benefits associated with the use of telemedicine in the Medicare program.

FTC Weighs-in on Telehealth, Comments on Delaware’s Occupational Therapy Practice Rule

by McDermott Will & Emery, Ashley Fischer, Lisa Mazur and Marshall E. Jackson, Jr. | Sep 15, 2016 | General Interest, Mobile Apps, Telehealth

On August 3, 2016, the Federal Trade Commission (FTC) staff submitted public comments regarding the Delaware Board of Occupational Therapy Practice’s proposed regulation for the provision of occupational therapy services via telehealth in Delaware (the Proposed Regulation). The FTC’s comments to the Proposed Regulation follow its comments to Alaska’s telehealth legislation earlier this year and evidence its continued focus on telehealth’s ability to foster flexibility in health care delivery by increasing practitioner supply; encouraging competition; and improving access to affordable, quality health care.

By way of background, in 2015, Delaware amended its Insurance and Professions and Occupations Code (the Code) to include the regulation of telehealth and telemedicine services, including the delivery of occupational care remotely under existing, in-person standards of care. Consistent with the Code, the Delaware Board of Occupational Therapy Practice (the Board) revised its rules and regulations to address telehealth services. The Proposed Regulation defines telehealth as “the use of electronic communications to provide and deliver a host of health-related information and health care services, including occupational therapy related information and services, over electronic devices. Telehealth encompasses a variety of occupational therapy promotion activities, including consultation, education, reminders, interventions, and monitoring of interventions.”

The Proposed Regulation gives Occupational Therapist and Occupational Therapist Assistant licensees’ (Licensees) discretion in assessing and determining the appropriate level and type of care for an individual patient, provided that certain requirements are satisfied. Specifically, under the Proposed Regulation, Licensees that provide treatment through telehealth must have an active Delaware license in good standing to practice telehealth in the state of Delaware. In addition to obtaining informed consent and complying with confidentiality requirements, the licensee must also: (1) be responsible for determining and documenting that telehealth is an appropriate level of care for the patient; (2) comply with the Board’s rules and regulations and all current standards of care requirements applicable to onsite care; (3) limit the practice of telehealth to the area of competence in which proficiency has been gained through education, training and experience; (4) determine the need for the physical presence of an occupational therapy practitioner during any interactions with patients, if he/she is the Occupational Therapist who screens, evaluates, writes or implements the plan of care; (5) determine the amount and level of supervision needed during the telehealth encounter; and (6) document in the file or record which services were provided remotely. (24 Del. Admin. Code § 2000-4.2.)

Staff of the FTC’s Office of Policy Planning and its Bureaus of Competition and Economics, responding to the Board’s request for public comments, stated that by not imposing rigid and unwarranted in-person care and supervision requirements, the Proposed Regulation could have various positive impacts, including: (1) improving access to cost-effective, quality care, especially for patients with limited mobility; (2) reducing Medicaid’s transportation expenditures as well as individuals’ pecuniary and time costs; (3) addressing anticipated workforce shortages in the health care sector by increasing practitioner supply and facilitating care of an aging population; and (4) enhancing competition, consumer choice and access to [...]

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Digital Health: An Improving Environment for Investors

by Dale C. Van Demark and Lisa Mazur | Jul 12, 2016 | General Interest, Mobile Apps, Telehealth

The integration of technology into health care delivery is exploding throughout the health industry landscape. Commentators speculating on the implications of the information revolution’s penetration of the health care industry envision delivery models rivaling those imagined by celebrated science fiction authors, and claim that the integration of information technology into even the most basic health care delivery functions can reduce cost, increase access, improve quality and, in some instances, fundamentally change the way health care is delivered.

These visions are difficult to refute in the abstract; the technology exists or is being developed to achieve what just a few years ago seemed the idle speculation of futurists. But delivering this vision in an industry as regulated as health care is significantly harder than it may seem. While digital health models have existed for many years, the regulatory and reimbursement environment have stifled their evolution into fully integrated components of the health care delivery system.

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The Rocky Road of Evaluation for Digital Health Tools

by Dale C. Van Demark | Jun 22, 2016 | General Interest, Social Media, Telehealth

Recent comments linking digital health tools to so-called “snake oil” has the channels of social media atwitter. (Add this post to the noise!) While some may decry the comparison, there is a lot we can learn from that perspective.

One of the challenges of broad digital health adoption is the simple fact that digital health encompasses such a broad array of technologies, usages and purposes. There is no one tonic that will cure a list of ailments; rather we are presented with shelves of solutions to even more shelves of challenges waiting to be addressed. Digital health includes, by my definition, the application of social media tools to preventative health and chronic disease management measures, as well as highly sophisticated data analytics applied to massive amounts of population health data to identify important health trends. It also includes home monitoring devices that keep health care providers informed of their patient’s at-home health condition, as well as telestroke programs that allow physicians to access needed expertise. The list is potentially endless, as new technologies created to address health issues and existing technologies are being put to use in the health care context. (more…)

AMA Approves New Ethical Guidance Policy and Encourages Telemedicine Training for Students and Residents

by McDermott Will & Emery and Lisa Mazur | Jun 20, 2016 | Consumer Protection, Data Privacy, General Interest, Mobile Apps, Telehealth

New Ethical Guidelines

On June 13, the American Medical Association (AMA) adopted a new ethical guidance policy governing the practice of telemedicine that will be published in the coming months. The policy is based on a report from the AMA Council on Ethical and Judicial Affairs and builds upon the AMA’s 2014 telemedicine guidance.

Consistent with past guidance from AMA and other professional organizations, the AMA notes that the ethical responsibilities of physicians are the same – regardless of whether the physician communicates with a patient in-person or remotely – and encourages providers to recognize the potential uses and limitations of technology when delivering care. “Telehealth and telemedicine are another stage in the ongoing evolution of new models for the delivery of care and patient-physician interactions,” said AMA Board Member Jack Resneck, MD. “The new AMA ethical guidance notes that while new technologies and new models of care will continue to emerge, physicians’ fundamental ethical responsibilities do not change.”

The 2016 policy recommends that once a patient-physician relationship is established, physicians who engage in telemedicine by responding to individual health queries electronically or providing clinical services through telemedicine:

Must disclose financial or other interests in certain telemedicine applications or services
Must protect patient privacy and confidentiality
Should inform patients of the limitations of the telemedicine encounter
Should encourage patients to inform their primary care doctor about the encounter
Should advise patients how to arrange follow-up care
Should, when necessary, recommend the use of a telepresenter or other health care professional at the originating site (e., the patient’s physical location)

Notably, the 2014 guidance required that a patient-physician relationship be established prior to the provision of telemedicine services. The relationship could be established during a face-to-face examination, through a consultation with another physician, or by meeting the evidence-based practice guidelines developed by major medical specialty societies. While the 2014 guidance did not specify whether the face-to-face examination must occur in-person, rather than digitally, many interpreted this requirement to be satisfied via an interactive telemedicine encounter.

In addition, the 2016 policy formally recognizes the importance of a “coordinated effort across the profession,” which includes clarifying standards and promoting access to technology. That said, the 2016 policy still requires the licensure of physicians in the state in which the patient is located. (As a general rule, physicians that practice telemedicine are subject to the licensure rules of both the state in which their patient is physically located and the state in which the provider is practicing.) One potential avenue for facilitating multi-state licensure is the Federation of State Medical Boards’ Interstate Medical Licensure Compact, which offers a streamlined licensure process in each Compact state. The Compact has been adopted by 17 states thus far and more are expected to join this year and in 2017.

In sum, the AMA’s new ethical guidance should help physicians to better understand how their fundamental ethical responsibilities may play out differently when patient interactions occur through technology, and how this technology can [...]

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