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Trending in Telehealth: March 20 – 27, 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 virtual care.

Trending in the past week:

  • Interstate Compacts
  • Medicaid and Private Payor Reimbursement
  • Prescribing
  • Health Practitioner Licensing
  • Behavioral Health


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.
  • 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.
  • 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 provider could use simultaneous audio and video technology to establish a provider-patient relationship through July 1, 2024. The current deadline is January 1, 2024. The bill suggests that after the 2024 deadline, a provider would need to see a patient in person within a certain time period to establish a provider-patient relationship.
  • New York passed an emergency rule that waives cost-sharing for visits to diagnose COVID-19, including diagnostic visits conducted through telehealth. The rule is currently set to expire May 11, 2023.
  • In Ohio, the Department of Mental Health and Addiction Services proposed a rule that would amend the regulations pertaining to opioid treatment programs and remove restrictions that previously have permitted telehealth to be used only for “stable patients,” or patients that have previously completed treatment programs or obtained treatment for substance use disorders.

Why it matters:

  • States are extending measures adopted during the COVID-19 pandemic in anticipation of the federal public health emergency coming to a close. New York’s emergency rule and Vermont’s proposed bill to extend state COVID-19 waivers indicate that states may permanently adopt the flexibilities afforded to providers during the COVID-19 pandemic.
  • States diverge on the methods to establish a provider-patient relationship. Although Washington’s bill extends the deadline for establishing a provider-patient relationship through simultaneous audio-visual technology, the bill does not give providers much leeway to use other technologies. In contrast, Arizona’s proposed bill would permit asynchronous store-and-forward technologies, remote patient monitoring services and audio-only telephone encounters.
  • There continues to be elevated activity permitting reimbursement for out-of-state professionals. The enacted bills in Virginia and Tennessee demonstrate states’ attempts to increase access to care by clarifying that out-of-state telehealth providers are eligible for reimbursement under each state’s Medicaid plan despite not having a physical location in the state.

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

© 2023 McDermott Will & EmeryNational Law Review, Volume XIII, Number 91

About this Author

Patrick Zanayed Associate Chicago Healthcare  Healthcare Mergers & Acquisitions  Healthcare Regulatory & Compliance  Hospitals, Health Systems & Medical Groups

Patrick Zanayed represents private equity funds, telehealth start-ups, strategic investors, ambulatory surgery centers, behavioral health facilities and physician practices in a variety of transactional and regulatory matters.

Patrick has assisted clients in connection with numerous transactions, including mergers, acquisitions, dissolutions, and management and professional service arrangements, as well as the creation of multi-state physician practice management and telehealth structures. He also regularly advises clients with respect to corporate practice of medicine laws, state...

Ashley Ogedegbe Attorney McDermott Will and Emery Chicago

Ashley Ogedegbe provides regulatory and transactional counseling to healthcare providers, specialty physician practices, hospitals and health systems, and digital health companies, as well as investors in the healthcare industry. Within digital health she is particularly focused on the virtual care, telehealth, mobile health and consumer wellness sectors, advising organizations and their investors on a variety of legal, regulatory and compliance matters that can impact their business outcomes.

She is particularly experienced in advising on...