Trending in Telehealth: September 26, 2023 – October 10, 2023

Trending in Telehealth: September 26, 2023 – October 10, 2023 McDermott Will & Emery

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 two weeks:

• Reproductive Health
• Telehealth Practice Standards
• Interstate Compact
• Disciplinary Guidelines
• Regulatory Licensing

A CLOSER LOOK
Finalized Legislation and Rulemaking

• California signed into law SB 345, which goes into effect on January 1, 2024. The legislation states that California law applies to any civil, administrative or criminal proceeding involving individuals (that is, patients) located inside and outside of California engaged in providing, receiving, supporting, or attempting to provide or receive reproductive health and gender-affirming healthcare services via telehealth or other means. This “shield law” also provides legal protections for healthcare practitioners located in California who provide or dispense medication or other services for abortion, contraception or gender-affirming care to out-of-state patients. These protections apply regardless of the provider’s location during the activity. This law also prohibits California law enforcement, government officials or government contractors from cooperating with out-of-state prosecutions related to abortion, contraception or gender-affirming care. The law prohibits California-based corporations, including social media and tech companies, from disclosing to law enforcement any private patient communication regarding healthcare that is legally protected in the state.
• New Hampshire enacted legislation effective October 7, 2023, that amends the prior law to permit out-of-state healthcare professionals to treat patients in the custody of the Department of Corrections via telemedicine, without a New Hampshire license, as long as the professionals are licensed in the state where they provide services. The prior law required all out-of-state healthcare professionals providing telehealth services to be licensed in New Hampshire, regardless of the patient’s location.

Legislation and Rulemaking Activity in Proposal Phase

Highlights:

• Florida proposed rulemaking to amend the disciplinary guidelines for telehealth providers. One significant amendment would discipline out-of-state telehealth providers or psychologists delivering telepsychology services via the interstate compact as if these practitioners were physically present in the state during the violation.
• Oregon proposed rulemaking to amend the Oregon Health Authority (OHA) recognition criteria for Patient-Centered Primary Care Homes (PCPCHs). PCPCHs include any healthcare practice that provides comprehensive primary care and meets the OHA standards for recognition. Under the amended rule, OHA would consider whether a PCPCH offers telehealth services in a patient’s primary language.
• West Virginia proposed rulemaking to establish procedures for the practice of telehealth by licensed respiratory therapists.
• California’s governor vetoed two bills this week.
  
  • AB 1478: California’s existing law requires the State Department of Public Health to maintain a statewide perinatal services program, which includes partnering with healthcare providers to offer coordinated services in areas that are medically underserved or have demonstrated need. The vetoed bill would have required the Department to create and maintain a database on its website listing community-based mental health providers specializing in postpartum depression and prenatal care. The governor expressed support for the proposed bill but ultimately concluded that the bill would be “duplicative of existing programs and resources.”
  • AB 912: California’s existing law requires the Department of Public Health, in cooperation with the State Department of Education, to establish a Public School Health Center Support Program, upon appropriation by the legislature, to assist school health centers. School health centers are defined as “centers or programs, located at or near local educational agencies, that provide age-appropriate health care services at the program site or through referrals, as specified.” The vetoed bill would have renamed the program as the School-Based Health Center Support Program. It also would have redefined a school-based health center to mean “a student-focused health center or clinic that is located at or near a school or schools, is organized through school, community, and health provider relationships, and provides age-appropriate, clinical health care services onsite by qualified health professionals.” The vetoed bill would have authorized school-based health centers to provide primary medical care, behavioral health services and dental care services onsite or through mobile health or telehealth. Although the governor applauded the bill’s intent, he concluded that the proposed program would exceed the state’s budget.
• Washington proposed rulemaking to amend the provision of home health services. Under the proposed rule, the Washington Medicaid Program would authorize and reimburse healthcare professionals providing home health services only when there is a face-to-face encounter, which includes telemedicine encounters.

Why it matters:

• Cross-Border Telehealth Regulation. Florida’s proposed rulemaking highlights the complexities states face when disciplining telehealth providers practicing across state lines. Practitioners should be mindful of individual state regulations, even when operating under the streamlined licensing provided by interstate compacts.
• Inclusivity and Cultural Sensitivity in Telehealth. Oregon’s proposed rule to revise the recognition criteria for PCPCHs exemplifies states’ efforts to promote a more inclusive and culturally sensitive healthcare system by offering services to patients in their own language. Providing telehealth services in a patient’s primary language can reduce miscommunication between the healthcare provider and the patient, which in turn can increase patient satisfaction, quality of healthcare delivery and safety.
• Balancing Standardization and State Autonomy. California’s enacted shield law and West Virginia’s proposed rule are examples of states asserting their sovereignty by tailoring telehealth standards to their specific healthcare landscapes. However, as practitioners continue to practice across state lines , we may see some states eventually shift to a more standardized approach.