Understanding the Telehealth Act and Virginia Law

Uniform Law Commission: Telehealth Act Sabrina Miller-Bryson Staff Attorney Division of Legislative Services

Quick reminder This presentation is based on the Informal Session Draft of the Telehealth Act (posted to the ULC website on 6/7/21). The Annual Draft has not yet been posted.

Telehealth Act: Background and Overview Technology has evolved the delivery of health care services COVID-19 pandemic increased the demand for telehealth services Aftermath of the pandemic: states are looking at expanding telehealth laws Proposed Telehealth Act was developed to address this growing demand Two broad goals of the proposed Telehealth Act: (1) To clarify that health care services may be provided through telehealth as long as they are consistent with state s standard of care and practitioner s scope of practice; and (2) To establish a registration system for out-of-state practitioners This goal will also address insurance coverage considerations

Telehealth Act: Summary Substantive Issues Definitions Standard of care/scope of practice Out-of-State Practitioners Registration board Disciplinary action Registered Practitioners Insurance Coverage Note: insurance provisions were considered at the Informal Drafting Session which took place on 6/17/21 and is not included in the current draft of the act.

Virginia Law: Standard of care 8.01-581.20 provides: A. In any proceeding before a medical malpractice review panel or in any action against a physician, clinical psychologist, clinical social worker, podiatrist, dentist, nurse, hospital, or other health care provider to recover damages alleged to have been caused by medical malpractice where the acts or omissions so complained of are alleged to have occurred in this Commonwealth, the standard of care by which the acts or omissions are to be judged shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth

Virginia Law: Statewide Telehealth Plan 32.1-122.03:1 Defines the following terms: Remote patient monitoring services Telemedicine services Telehealth services Requires that the Plan include provisions on promoting the use of telehealth services and telemedicine services, promoting the use of remote patient monitoring services and store-and-forward technologies, and strategies for: (1) integration with other existing health plans; (2) maintenance of the Plan; and (3) and data collection regarding the use of telehealth services and telemedicine services.

Virginia Law: Licensure Chapter 29, Subtitle III of Title 54.1 governs the licensing of most health care professions To perform health care services, most health care professions require a valid, unrevoked license issued by a licensing board within the Commonwealth Virginia is not a participant in the Interstate Medical Licensure Compact Multistate licensure compacts currently in place for the following: Nursing: 54.1-3040.3 Psychology: 54.1-3606.2 Physical therapy: 54.1-3485 EMS Personnel: 32.1-371 Occupational therapy: Chapter 242 of Acts of Assembly of 2021 (effective January 1, 2022)

Virginia Law: Commercial Insurers A 50-state survey conducted by Nathaniel Lacktman, et. al at Foley & Lardner examined telehealth laws and focused specifically on which states include provisions for insurance coverage for telehealth services relating to commercial insurers. Virginia s statute for insurance coverage for telemedicine services is 38.2- 3418.16 July 1, 2021 update: coverage will be expanded to include services delivered through other means, such as an audio-only telephone The Foley & Lardner survey identified eight areas of significance for insurance provisions, then examined how many of these areas are addressed by each state s statute(s).

Virginia Law: Medicaid 32.1-325: The Board is to include 26. A provision for the payment of medical assistance for medically necessary health care services provided through telemedicine services, as defined in 38.2-3418.16, regardless of the originating site or whether the patient is accompanied by a health care provider at the time such services are provided. No health care provider who provides health care services through telemedicine services shall be required to use proprietary technology or applications in order to be reimbursed for providing telemedicine services. Chapter 301 of the Acts of Assembly of 2021 expands these provisions to include remote patient monitoring services for certain enumerated patients

Considerations Considerations: Multistate license compacts already in place Pushback regarding prescription of certain controlled substances Uniformity across jurisdictions More providers = more services But, if some states don t include certain providers, potential barrier on uniformity Insurance provisions: TBD

Stakeholder feedback Department of Medical Assistance Services (DMAS) Embraces telehealth Main concerns will be with insurance provisions Including a requirement for telehealth coverage and payment parity with in-person services, and precluding the use of any specialized providers would limit payer discretion; General Assembly has recognized importance of discretionary authority On the other hand, the Drafting Committee is considering including alternative payment models which would be consistent with payer discretion.

Questions? Sabrina Miller-Bryson Smiller-Bryson@dls.Virginia.gov