Melissa Ward
Sr. Business Analyst - Regulatory Affairs

Regulations affecting the telehealth industry are constantly changing, and I want to make it easy for you to keep up with the latest developments. That’s why I start each month by summarizing federal and state initiatives affecting the industry. Let’s dive into this month’s edition of Regulatory Roundup! 

virtual care regulation

Federal

Federal Public Health Emergency Status Update

Secretary Xavier Becerra of the Department of Health and Human Services (HHS) had previously indicated that providers would be given a 60-day notice before the expiration of the PHE (Public Health Emergency). The current PHE is to expire on July 15, 2022. However, notice was not given in May; therefore, the PHE should be extended, taking it through October 2022.  

Telemental Health Access to Care Act – Discussion Draft

The Senate Finance Committee released this draft to remove Medicare’s in-person requirement for telemental services. The draft proposes increased transparency for services allowing beneficiaries to better understand how and when they can access telemental services. The draft also seeks to direct Medicare and Medicaid to promote and support provider use of telehealth. States would be incentivized to use their Children’s Health Insurance Program (CHIP) to create solutions to support telemental services in schools.  

The committee indicated it is committed to paying for mental health packages with bipartisan offsets. Earlier this year, the committee announced five shortfalls in mental healthcare: telehealth, youth, mental health parity, care integration, and workforce.  

virtual care regulation

By State

Colorado Senate Bill 181, Behavioral Health Administration’s Plan to Address Issues with the Delivery of Behavioral Healthcare – Introduced

This bill would require the behavioral health administration to create and implement a plan to expand, strengthen, and invest in the behavioral healthcare provider workforce that outlines how to: 

  • Promote and recruit new and existing behavioral healthcare providers in Colorado 
  • Create opportunities for behavioral healthcare providers to advance in their field 
  • Increase the number of peer support professionals across the state 
  • Support rural communities in developing the skills of their residents 
  • Offer student loan forgiveness programs and student scholarships 
  • Expand telehealth options 
  • Increase flexibility concerning credentialing and licensing reciprocity among states
     

New Hampshire Senate Bill 390, Act Related to Telemedicine and Telehealth – New Status 

The following definitions would be amended to read: 

  • “Asynchronous interaction” means an exchange of information between a patient and a health care professional that does not occur in real time 
  • “Synchronous interaction” means an exchange of information between a patient and a healthcare professional that occurs in real time 
  • “Telemedicine” means the use of audio, video, or other electronic media and technologies by a health care professional in one location to a patient at a different location for the purpose of diagnosis, consultation, or treatment, including the use of synchronous or asynchronous interactions 
  • “Telehealth” means the use of audio, video, or other electronic media and technologies by a healthcare professional in one location to a patient at a different location for the purpose of diagnosis, consultation, or treatment, including the use of synchronous or asynchronous interactions 

This bill would remove the “in-person or face-to-face 2-way real-time interactive communication exam …” requirement for establishing a physician- or practitioner-to-patient relationship. Removal of this requirement would allow the relationship to be established asynchronously provided the provider: 

  • Verifies the identity of the patient 
  • Discloses their name, contact information, and their type of license 
  • Obtains oral or written consent 
  • Meets the standard of care 


Ohio State Medical Board – Telehealth Rules Proposed for Filing with the Common Sense Initiative (CSI)

At the February board meeting, telehealth rules were approved for initial circulation to the public. After receiving 62 comments on the rules, the board issued its recommendations. Here are a few highlights: 

Asynchronous Communication Technology: Commenters requested that the definition of types of stored information be expanded. The board declined the suggestions citing federal law and the board’s decision to be consistent with federal law 42 CFR (Code of Federal Regulations) § 410.78. The stored information in that law reads: “photographs visualized by a telecommunications system must be specific to the patient’s medical condition and adequate for furnishing or confirming a diagnosis and or treatment plan.” 

Formal Consultation: A commenter submitted the suggestion to define “formal consultation” to distinguish it from “consultation.” In response, the board recommended the following definition: 

“Formal consultation” means when a health care professional seeks the professional opinion of another health care professional regarding the diagnosis or treatment recommended for the patient’s medical condition presented, transfers the relevant portions of the patient’s medical record to the consulting health professional, and documents the formal consultation in the patient’s medical record.  

Referral Provisions: For patients that require emergency care, the board’s rule would require that a telehealth provider help the patient identify the closest “emergency room (ER) and provide notification to the ER of the patient’s potential arrival.” After reviewing comments, the board revised the rule requiring a call to the ER “if necessary, in the health care professional’s discretion.” 

The board added an additional rule for patients that do not need immediate care: “refer the patient to a health care professional in the same specialty to conduct an in-person visit within an amount of time that is appropriate for the patient and their condition.” 

South Carolina Senate Bill 613, Delegation of Task to Unlicensed Assistive Personnel – Enacted

This law allows a physician, physician assistant, or advanced practice registered nurse to delegate nursing tasks to a certified medical assistant (CMA) under their supervision. Under this law, CMA means a “person who is a graduate of a post-secondary medical assisting education program accredited by the National Healthcare Association.” Such nursing tasks include but are not limited to: 

  • meeting patients’ needs for personal hygiene 
  • meeting patients’ needs relating to nutrition 
  • meeting patients’ needs relating to ambulation 
  • meeting patients’ needs relating to elimination 
  • taking vital signs 
  • maintaining asepsis 
  • observing, recording, or reporting any of the nursing tasks enumerated in this subsection 

Licensure Compacts 

As collaborative agreements between states, licensure compacts help expedite licensure allowing providers to practice across state lines. While not a new concept, the PHE has drawn greater attention to the benefits of participation. With a shortage of providers, compacts bring services to those who would otherwise have significantly delayed care awaiting a local provider – if one is even available – or forgone care. 

According to the Center for Connected Policy, compacts currently exist as follows: 

  • The Interstate Medical Licensure Compact: 34 states, DC and the territory of Guam 
  • The Nurses Licensure Compact: 37 state members and the territory of Guam  
  • The Physical Therapy Compact: 33 state members and DC  
  • The Psychology Interjurisdictional Compact: 30 state members and DC 
  • The Audiology and Speech-Language Pathology Interstate Compact (ASLP-IC): 19 state members 
  • The Emergency Medical Services Personnel Licensure Interstate Compact (REPLICA): 21 state members 
  • The Occupational Therapy Compact: 19 state members 
  • The Counseling Compact: 10 state members  
  • The Advanced Practice Registered Nurse Compact: 3 state members 

Source: CCHP: State Telehealth Laws and Medicaid Program Policies Spring 2022 

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This information, and any other information, content or other materials (collectively “Information”) we provide, does not, and is not intended to, constitute legal advice; instead, all Information is provided for general informational purposes only. The Information may not constitute the most up-to-date legal or other information.  Readers should contact their attorney to obtain advice with respect to any particular legal matter. No reader or user of any Information should act or refrain from acting on the basis of Information without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the Information – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, or access to, the Information does not create an attorney-client relationship between the reader or user, and the author or provider of the Information.

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