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Emily H. Wein: Changes ahead for the Maryland telehealth industry

Emily H. Wein

Emily H. Wein

Telemedicine, or more generally telehealth, is not new. It has been around for decades but historically has not been a service modality commonly used by health care providers due to limited coverage and reimbursement imposed by Medicare. Restrictions on rendering provider type, patient location, type of service and type of technology used made telehealth an unattractive investment option.

However, with the shift in focus, courtesy of the Affordable Care Act, to the “triple aim” of increased quality, increased cost savings (or decreased costs) and increased patient experience – and those patients’ increased demand for convenient and immediate service in all areas of life, including shopping, banking, financial services, and medical care – telehealth has a new appeal.

The boost in appeal is compounded by the fact that implementation is not the barrier it may have been 10 or 15 years ago, with consistent innovative technology making telehealth technology undoubtedly more accessible as well as more affordable than in years past. Furthermore, not only do consumers want this service, they are often willing to pay out of pocket for it. These two factors alone often present enticing return of investment projections for facilities looking to add value to their services and for entrepreneurs looking to get into this fast-moving market.

While there is room for significant improvement within Medicare coverage and reimbursement policies, Medicare is no longer as much a deterrent for telehealth expansion. The steady growth and expansion of telehealth services may be a reason for increased activity by state Medicaid programs and state professional licensing boards, however, particularly in the form of new or amended coverage policies and licensing practice standard regulations. Maryland has certainly seen its share of this activity.

State Medicaid programs have more flexibility in their coverage and payment policies as compared to Medicare. Last fall, the Maryland Medicaid program took advantage of that flexibility by amending its telehealth regulations with two notable changes. The first added substance abuse services to the list of reimbursed services provided by distant site telehealth providers. The second clarified the scope of coverage and reimbursement of asynchronous (store and forward) technology. Store and forward technology is not covered under Medicare and was similarly treated by Maryland Medicaid.

The amended regulations, however, carve dermatology, ophthalmology, and radiology services from the definition of “store and forward technology.” In effect, the amendments allow program coverage and payment for such specialty services when provided using store and forward technology, commonly referred to as tele-dermatology, tele-ophthalmology or tele-radiology, while maintaining the program’s limitation on coverage and reimbursement for store and forward technology generally.

Remote prescribing

Even more activity has taken place on the professional licensing side. In December, the Maryland Board of Physicians proposed revised telehealth (formerly referred to as telemedicine) regulations. Of note, the proposed regulations make clear the same standard of practice applies in the context of telehealth as in the traditional health care setting and clarify the scope of telehealth not only includes real-time audio/visual technology but store and forward and remote patient monitoring as well – modalities that are excluded from Medicare’s benefit.

Despite this assertion of uniformity, the regulations introduce new and detailed patient acknowledgement requirements and impose new practice requirements, such as confirming whether another individual is present with the patient. The regulations also address the board’s allowance for remote prescribing. While implying remote prescribing may be based upon a patient relationship established through telehealth, the regulations initially impose various restrictions on remote opioid prescriptions. However, after the board heard stakeholder feedback in January, those restrictions were narrowed to a restriction on remote opioid prescribing for pain management, unless the patient is in a health care facility.

The Board of Psychology quickly followed suit by issuing brand new teletherapy regulations. Most notably, the new regulations call for an in-person encounter as a prerequisite to engaging in telepsychology, an approach to which the telehealth industry as a whole objects. Further, the teletherapy regulations bypass psychologists’ professional judgment by directing them to take detailed steps in determining the appropriateness of tele-psychology for a given patient. Other notable elements of Maryland’s telepsychology regulations include the exclusion of asynchronous, or store and forward, technology from the definition of “telepsychology” – a deviation from the Board of Physicians’ telehealth regulations – and the imposition of detailed emergency protocols on telepsychology providers.

More teletherapy regulation can be expected from other Maryland licensing boards. Legislation passed by the General Assembly last session required various boards, including for nursing, professional counselors and therapists, and social work examiners to adopt regulations for the use of teletherapy, defined to mean telemedicine used to deliver behavioral health services. The legislation required that the regulations be issued by April 1, which provides for a very busy spring for regulators and stakeholders.

Interested parties should utilize the resources available to them for purposes of education and information regarding the use of telehealth such as the Maryland Telehealth Alliance, which is Maryland focused organization as well Maryland’s regional resource center, The Mid-Atlantic Telehealth Resource Center and the national American Telemedicine Association.

Emily H. Wein is a shareholder with Baker Donelson in Baltimore and serves as counsel to the Maryland Telehealth Alliance. She can be reached at ewein@bakerdonelson.com.