What we’re seeing with state telehealth legislation in 2023 

A 1980s movie theme song identified several maladies and asked the question: “Who ya gonna call?” Increasingly, people with medical concerns are answering that question with “my telehealth provider, of course.” State legislatures have taken note and are taking action.

Telehealth comes in variety of modalities these days: telephone, video, mobile technology, remote patient monitoring and even store-and-forward technology (SFT). The SFT modality enables the healthcare provider to assist another provider who is with the patient, via a health information technology system. On a side note, federal HIPAA rules apply to telehealth services and may impact the technology. During the COVID-19 outbreak, the Department of Health and Human Services issued enforcement relief, but on May 11, 2023, this relief ended, contemporaneous with the expiration of the Public Health Emergency.

Current state initiatives generally fall into four major categories:

1. Establishment of patient-provider relationship. The early days of telehealth met with a measure of skepticism. It was not uncommon to require an in-person visit as a prerequisite to establishing a provider-patient relationship that would permit a telehealth visit. Not so much anymore. Idaho became the latest state to allow the relationship to be established by virtual care technology.
2. Reimbursement parity. One of the advantages of telehealth for plan sponsors is the prospect of reducing plan costs by reimbursing telehealth providers at a lower rate than when the service is provided in person. Several states have pushed back on this concept. Last month, Nebraska joined over a dozen states in requiring fully insured plans to reimburse telehealth and in-person providers at the same rate. Legislation is pending in at least three other states. Interestingly, a Hawaii bill – passed by both Houses but still pending – would require reimbursement parity, except for mental health where telehealth services can be reimbursed at 80% of in-person services.
3. Interstate compacts. Telehealth offers a viable solution for states with large rural populations where access to providers presents challenges. Many states have recognized that accessing providers from beyond their state borders can help considerably, providing licensing reciprocity where a healthcare provider is licensed and in good standing elsewhere. A growing number of interstate compacts have arisen, primarily related to mental and behavioral health. North Dakota recently joined the Psychology Interjurisdictional Compact (PSYPACT), which facilitates the practice of mental healthcare across state boundaries. Florida and New York have pending PSYPACT bills. Over two-thirds of states (and Washington, DC) are now PSYPACT members. An Indiana law enabled the state to join an occupational therapy compact. A Washington law enabled the state to join an audiology and speech-language pathology compact. A Montana law allows licensing reciprocity for telehealth providers in the areas of addiction counseling, marriage/family therapy and behavioral health peer support.
4. Abortions. Some states are reviewing their telehealth rules and working to align them with existing state abortion laws. For example, Florida passed a law prohibiting the use of telehealth to perform abortions, including the prescription of related medications. A Utah law allows nonresident mental health providers via telehealth but prohibits them from prescribing drugs. On the other hand, a Vermont law aims to protect telehealth providers from liability for providing abortions. Look for that trend to continue.

Other developments include:

• A new Georgia law requires fully insured plans to apply the same limitations like prior authorization and medical review to both in-person and telehealth services.
• Georgia also launched a Medicaid pilot program that will use digital technology for maternal health clinical services. By the end of 2024, the Department of Public Health will submit a report with suggestions on how to expand the program statewide.
• North Dakota will mandate a comprehensive medication management program, which fully insured plans can accomplish through telehealth.
• State telehealth laws resemble a mosaic. Compliance complexities can present a scalability challenge for multi-state employers looking to leverage telehealth’s potential for increased access, improved outcomes and decreased costs. But these challenges can be overcome through increased awareness of what is allowed and what is restricted in the states, as well as effective communication with telehealth vendors, insurers, third-party administrators and plan participants. Ultimately, given the vast potential for telehealth, plan sponsors should heed the memorable words of Ray Parker, Jr. in the Ghostbusters movie: “I ain’t afraid of no ghost.”