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 facility informed consent requirements to its policies and procedures related to patient rights and would permit prescribers to use remote technology, including telehealth, to examine and obtain informed written consent.
• New York proposed rulemaking that would implement regulations regarding the use of telehealth in crisis stabilization centers and permit Medicaid reimbursement for such services. The rulemaking would impact all programs certified by the Office of Addiction Services and Supports and the Office of Mental Health.
• Texas proposed rulemaking to review and to reorganize its guidelines for the use of telehealth by behavior analysts. The amendments also update rules to reflect current Department of Licensing and Regulation procedures, restructure existing rules for better organization and replace outdated rule language.
• Alaska’s Board of Professional Counselors proposed rulemaking to update the distance professional services regulations to provide guidance to professional counselor supervisees practicing telehealth.
• Missouri proposed rulemaking specifying the requirements for Comprehensive Substance Treatment and Rehabilitation (CSTAR) programs, which are Medicaid funded, in providing services in accordance with Treatment Criteria for Addictive, Substance-Related and Co-Occurring Conditions. The proposed rule would recognize telemedicine as a face-to-face service and would permit all levels of care under certain CSTAR programs to be provided via telemedicine.
• Ohio proposed SB 90, which would enter the state into the Social Worker Compact.

Why it matters:

• Increased activity in California continues. California continues to move forward with legislation to address access to healthcare services via telehealth. While these bills generally increase access, they address specific scenarios, reflecting an openness to telehealth under specific circumstances.
• States continue to focus on Medicaid reimbursement for substance abuse disorder and addiction treatment. States are working to address the Medicaid population’s need for access to these services through the expanded use of telehealth.
• States continue to amend practice standards to incorporate telehealth. This week, we saw Texas, Alaska and Maryland introduce and make effective rules related to telehealth practice standards. This activity continues the trend of states expanding telehealth standards to include additional practice areas and address different licensee types.

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. 

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