State Legislatures Expanding Focus on Telehealth

Ken Terry

December 14, 2015

The National Conference of State Legislatures (NCSL) released a report Thursday that examines the policy issues related to telehealth and the state laws that govern the use of this technology.

NCSL defines telehealth as an umbrella term for virtual visits, remote patient monitoring, mobile health applications, and online patient education. These approaches may be used in primary care and a number of other care settings.

The interest of state legislatures in telehealth is increasing, NCSL observes. In 2015, 200 bills addressing telehealth were introduced in 42 states.

The report lists some aspects of telehealth that are attractive to state legislators. These include its potential ability to ameliorate healthcare workforce shortages and maldistributions, reduce health disparities for aging and underserved populations, and improve access to care and reduce costs.

While NCSL acknowledges that more research is needed, it cites studies showing that telehealth can be a cost-effective alternative to traditional care-delivery methods.

The three main policy issues arising from telehealth, NCSL says, are coverage and reimbursement, state licensure of health professionals, and safety and security considerations.

The limitations of Medicare coverage of telehealth are an issue for states, NCSL notes, because of its application to patients who are dually eligible for Medicare and Medicaid. Some states have expanded telehealth coverage for these dual eligibles.

States Vary

States have more control over Medicaid coverage, and 49 states and the District of Columbia now have some telehealth coverage in their Medicaid programs, the report points out. Most states reimburse for virtual visits by Medicaid patients; nine states pay for "store and forward" services, in which telehealth data and images are transmitted from one site to another; and 17 states reimburse for remote patient monitoring. All but two states also have some coverage for behavioral health services provided by remote video.

Twenty-four states do not specify a patient setting or location for a telehealth service as a condition of payment. Half of the states allow a patient's home to be the originating site, and 16 states recognize schools or school-based health centers. Twenty-eight states and Washington DC do not require a telepresenter during the encounter or on the premises during the service.

State laws on the coverage of telehealth by private payers vary a great deal. In states that mandate reimbursement of virtual visits, some require it to be at the same rate as in-person encounters if similar services are provided. This "full parity" is required in 23 states and Washington DC.

State laws and regulations governing the licensure of medical professionals allow doctors and nurses to engage in telehealth within their states of licensure, the report notes. Some states grant temporary licenses or telehealth-specific licenses or have reciprocity with neighboring states to allow telehealth practice across state lines.

Nine states have special licenses related to telehealth, including Alabama, Louisiana, Nevada, New Mexico, Ohio, Oklahoma, Oregon, Tennessee, and Texas.

There are also interstate compacts that allow reciprocity of licensure in participating states. One such compact was launched last year by the Federation of State Medical Boards (FSMB); it now includes 11 states. There's also a nurse licensure compact that includes 25 states and has been in existence for 15 years.

The NCSL report also mentions other telehealth issues, including liability, scope of practice, and credentialing and privileging. Most providers are covered for telehealth under their existing liability coverage, the report says. However, this area is "unsettled and could be a barrier to telehealth," it adds.

Under the heading of safety and security, some state regulatory boards have adopted guidelines for which services can be delivered by telehealth, for establishing a patient-provider relationship, and for informed-consent requirements. The American Medical Association, the American Telemedicine Association, and the FSMB have also provided best-practice guidelines for the safe use of telehealth.

The key issue in this area is how to establish a patient-provider relationship. The majority of states allow it to be established in the course of providing telehealth services. Some states require a face-to-face visit, but that doesn't necessarily mean an in-person encounter.

Twenty-nine states have informed-consent policies. These may apply to all providers, just the state Medicaid program, or specific services. Fewer than 10 states require written consent by patients for telehealth services.

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