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Volume XIII, Number 32


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Trending in Telehealth: January 17 – 23, 2023

Trending in Telehealth is a new weekly series from the McDermott Digital Health team where 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 this week:

  • Provider Licensing

  • Telehealth Definitions

  • Telehealth Service Expansion

A closer look:

Finalized: 1

  • New Jersey finalized a seven-year extension to existing rules that were set to expire on January 15, 2023. These rules, in part, allow for flexibility for out of state speech pathologist and audiologists to obtain a license without an examination.

Proposed: 13

  • Maryland saw activity across a collection of nine proposed rules.

    • Comment periods closed on January 17, 2023, for five rules proposed in mid-December. These rules amend or create telehealth standards of practice for LCSWsBehavior AnalystsPodiatristsOptometrists, and Audiologists and Speech Pathologists.

    • On January 13 the state proposed rules that clarify standards of practice for telehealth providers in physical therapy and early intervention care for children settings.

    • The state proposed two additional rules expanding services provided via telehealth that would be covered under the Medical Assistance program. This includes expanding reimbursable physician’s services, and care provided in urgent care settings. Both proposed rules require that all telehealth services are compliant with general requirements for telehealth practice to be reimbursed.

  • The South Dakota House passed a bill that amends practice guidelines for speech pathologists, including clarifying telehealth standards. This bill goes to the state Senate for voting.

  • The Wyoming Senate has moved forward on two bills to adopt professional counseling compact and Psychology Interjurisdictional Compact (PsyPact) requirements. These bills both head to the South Dakota House.

  • Texas proposed rule changes related to the provision of prenatal care that expand the use of telehealth and differentiates between medical services provided through telehealth and non-health services.

Highlights for the Industry:

  • States continue to propose bills and regulations that would align telehealth definitions and licensing standards across provider type. The rules Maryland proposed in December seek to standardize language around telehealth across five different provider types. The South Dakota bill similarly seeks to replace outdated language relating to speech pathologists providing telehealth with standardized references. This would seem to indicate that with expanded adoption of telehealth regulations, states are now adjusting outdated language to create more streamlined standards.

  • The Wyoming Senate has moved forward on a bill to adopt professional counseling compact and Psychological Interjurisdictional Compact requirements, showing that tele-behavioral health continues to be a focus for states. Wyoming is one of eight states with active bills pending in state legislatures considering enrolling in the Psychological Interjurisdictional Compact (Psypact). Greater enrollment and adoption of licensing compacts creates a more standardized process for providers to quickly obtain licensure in many states, being able to provider care across state lines, a problem that has faced multi-state care.

Telehealth is an important development in care delivery, but the regulatory patchwork is complicated. 

© 2023 McDermott Will & EmeryNational Law Review, Volume XIII, Number 24

About this Author

Dale Van Demark, health care, attorney, McDermott Will, law firm

Dale C. Van Demark is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He focuses his practice on a broad array of merger, acquisition, investment, and strategic structuring transactions, with clients in the health industry. He has extensive experience in health system affiliation and restructuring transactions and regularly represents for-profit and tax-exempt clients in a variety of transactions, including strategic transactions with physicians and hospitals. He regularly advises clients regarding the opportunities...

Abby Higgins Lawyer Healthcare McDermott Will Emery

Abby Higgins provides regulatory counseling on all aspects of state and federal healthcare laws impacting hospitals and healthcare systems, with a particular emphasis on digital health products and services. Abby has experience handling issues related to fraud and abuse, Stark Law, federal Anti-Kickback Statute (AKS), Food & Drug Administration regulations, cannabis laws and patient data protection.

Prior to joining McDermott, Abby served as an executive editor of Loyola’s Annals of Health Law and Life Sciences.