2017 in State Telehealth Policy

It was an active year for state telehealth legislation in 2017. Among 34 states and DC, 62 legislative bills passed in 2017, up from 48 bills in 2016. Unlike past years, where much legislation focused on enacting new telehealth private payer bills, the majority of legislation was focused on modifying already existing Medicaid and private payers reimbursement laws or policy. Additionally, establishing board practice standards and requirements around the physician-patient relationship and prescribing continued to grow. Other noteworthy trends included the enactment of the Interstate Medical Licensure Compact, and two states enacted the Interjurisdictional Psychology Compact. Emerging areas of interest was the ability to incorporate telehealth into calculations for network adequacy, restrictions on insurance companies limiting their reimbursement to a specific technology, and the allowance to prescribe controlled substances via telehealth under specific circumstances and within federal limits.

See the full round-up of state-approved legislation for 2017, from PHI’s Center for Connected Health Policy.

Key trends from this years’ legislative roundup:

Medicaid

Legislation addressing needed modifications to Medicaid telehealth reimbursement policies had the highest number of successful legislation. These bills focused on adding additional eligible services, providers and/or originating sites. For example, New York added schools and adult assisted living facilities to their definition of originating sites which applies to the state’s Medicaid program and Texas expanded Medicaid reimbursement to social workers and a variety of therapists. Eliminating unnecessary barriers, such as New Hampshire’s requirement that an originating site be located in a rural area (as defined by CMS’ telehealth policy), was also prevalent in these bills.

Private Payer

While three states (NE, NJ, and ND) added a new requirement that private payers cover services delivered via telehealth in some capacity, an additional five states amended their law to address issues they have encountered since implementation. For example, Colorado passed HB 1094 prohibiting health plans from restricting coverage of telehealth to a specific communication technology or application. Like legislation addressing revisions to the Medicaid program, many of these bills also expanded the definition of originating sites or added additional services to those required to be covered, for example substance use in Maryland and dental coverage in Montana.

Texas’ SB 1107 also included a brief section on private payers, requiring that they publish their telehealth reimbursement policy on their websites, the first such law in the country. Such a policy may provide a solution for many telehealth stakeholders who have difficulty determining private payers’ telehealth policy.

It is also worthwhile to note legislation that failed to pass. While many states introduced legislation amending previously passed telehealth private payer laws to mandate payment parity, including Oklahoma, Washington, Kansas, and New York, none of these bills passed. Additionally, the three states that did pass new telehealth bills did not include this language. In North Dakota’s case, they explicitly state that the rate of payment can be established through negotiation.

Professional Practice

Requirements around establishing the physician-patient relationship was a hot topic leading into 2017. In 2015, TelaDoc filed an antitrust lawsuit against the Texas Medical Board in response to a regulation requiring a patient be at an established medical site in order to establish a relationship over telemedicine. Through a negotiation process between relevant parties early in the year, state legislation (SB 1107) was introduced and signed into law. Accompanying regulations were finalized in November resulting in TelaDoc dropping their lawsuit. The new rules allow the practitioner-patient relationship to be established via telehealth as long as the same standard of care is met for telemedicine, as is applied to in person services. Some states have passed legislation reflecting similar criteria.

Other states don’t address the practitioner-patient relationship specifically, but established requirements for providers prescribing medication over telehealth and/or approved general practice guidelines for providers utilizing telehealth. Often, states directed particular professional regulatory boards to promulgate regulations related to the use of telehealth. Several states also clarified their prescribing laws related to the prescription of controlled substances, with two states (MI and VA) stating that the prescription of certain controlled substances via telemedicine is allowed under specific circumstances when it complies with federal policy.

Compacts

More states continue to enact the interstate medical licensure compact, with four states (ME, NE, TN, and WA) joining this year. In 2017, the Compact became fully operational with the Commission tasked with implementing the Compact formalizing an application process. Twenty-two states have currently enacted the Compact, and twenty states are currently actively issuing licenses under this process.

Additionally, the Psychology Interjurisdictional Compact was passed in two states (NV and UT), joining Arizona which passed the Compact in 2016. Although the three states have enacted the legislation, the Compact doesn’t become effective until at least seven states have joined.

Network Adequacy

Although not a large number, three states (CA, HI, and IL) passed legislation in 2017 allowing telehealth to be used to meet network adequacy. A few additional states have also made this change within their regulations without going through the legislative process. As health plans look at innovative ways to meet their network adequacy standards, incorporating telehealth into the equation may become more common.

As in previous years, there was a variety of passed legislation on pilot projects, studies, and special programs that incorporate telehealth in some way. Many of the studies were aimed at specific policy recommendations for potential future telehealth policy legislation. For example, North Carolina’s HB 283 directed their Department of Health and Humans Services to study and recommend a telemedicine policy, and Virginia required their Joint Commission on Health Care to study options for increasing the use of telemental health services. Pilot projects with a telehealth element included implementing an accountable care collaborative; a crisis service walk-in center mobile response unit project; jail mental health screenings; and others focused specifically on the utility of telehealth.

Pilots, Studies, and Special Projects

As in previous years, there was a variety of passed legislation on pilot projects, studies, and special programs that incorporate telehealth in some way. Many of the studies were aimed at specific policy recommendations for potential future telehealth policy legislation. For example, North Carolina’s HB 283 directed their Department of Health and Humans Services to study and recommend a telemedicine policy, and Virginia required their Joint Commission on Health Care to study options for increasing the use of telemental health services. Pilot projects with a telehealth element included implementing an accountable care collaborative; a crisis service walk-in center mobile response unit project; jail mental health screenings; and others focused specifically on the utility of telehealth.

Looking Ahead

2018 promises to be another active year in telehealth policy. CCHP expects the trends discussed above to continue into 2018. Some states have already begun pre-filing telehealth legislation primarily related to reimbursement, including three states with little telehealth policy currently on the books: Massachusetts, New Hampshire, and Florida. A major factor that may influence state telehealth policy in the future is the outcome of an audit, announced in late November by the Office of the Inspector General (OIG), focused on Medicaid payments for telemedicine and telehealth to ensure compliance with reimbursement requirements. Whether the OIG will evaluate telehealth Medicaid claims against each states’ unique telehealth policies or a more general federal standard is unclear. The report, which is scheduled to be released in 2019, has the potential to have major implications for the future of state telehealth Medicaid policy.

Want more? See the full round-up of state-approved legislation for 2017, from PHI’s Center for Connected Health Policy.

Originally published by This post first appeared in an alert from PHI's Center for Connected Health Policy.