Annual roundup of 2023 State Legislation

Among 42 states, 171 legislative bills tracked by CCHP passed in the 2023 legislative session.  While this is slightly down from last year (which had 180 enacted bills), it’s still significantly higher than the bills passed in 2020 (104 bills). The number of bills in each individual topic area CCHP tracks varied from previous years.  For example, while bills addressing cross state licensing and demonstrations, studies and reports were down this year, bills addressing Medicaid and private payer reimbursement as well as professional regulation were significantly up.  Note that CCHP began tracking Puerto Rico and Virgin Islands legislation in 2022 for the first time. However, no enacted bills were found related to telehealth in either of the territories during the 2023 session.

MEDICAID REIMBURSEMENT

In 2023, of the bills on Medicaid reimbursement that CCHP tracked, 30 passed. This was significantly higher than 2022 enacted bills, when there were only 17 enacted bills pertaining to telehealth in Medicaid.  The trend for Medicaid programs in recent years, following the COVID-19 emergency, has been to expand reimbursement for telehealth delivered services, in terms of both the services eligible for reimbursement and types of modalities allowed (i.e. beyond live video to include telephone, remote patient monitoring and store-and-forward).  As documented in CCHP’s Telehealth Policy Finder, Medicaid programs often implement these expansions without the need for legislation, typically releasing Medicaid updates or regulatory action instead.  However, there were cases this legislative session where legislation was passed to require Medicaid to implement certain coverage. Texas, for example, passed HB 2727, which amended the state’s home telemonitoring services statute, extending eligibility to FQHCs and RHCs as providers for telemonitoring services and expanding the list of eligible conditions (that qualify for telemonitoring reimbursement) to include end-stage renal disease and conditions requiring renal dialysis treatment. Likewise, Florida’s HB 967 directed the Agency for Health Care Administration to offer Medicaid to provide coverage for continuous glucose monitors to eligible recipients under the pharmacy benefit if certain conditions are met, such as the recipient being diagnosed with diabetes.  A requirement for audio-only coverage in Medicaid also made its way to legislation in some cases.  Utah’s HB 437, for instance, mandates the Medicaid program to reimburse for audio-only telehealth services and Maryland SB 582 / HB 1148 extends to June 30, 2025 (previously it was June 30, 2023) the inclusion of audio–only telephone conversations between a health care provider and patient that results in the delivery of a billable covered service.  Not to be left out, asynchronous coverage was also addressed in North Dakota’s HB 1530, which requires Medicaid to cover asynchronous teledentistry.

Bills in several states also worked to ensure Medicaid programs covered specific types of services or conditions through telehealth.  Examples include the following:

• Arkansas’s HB 1129 specified that behavioral health screening and services may be provided through telemedicine and reimbursed by Arkansas Medicaid.
• Nevada’s AB 147 mandates health maintenance organizations that provide dental services to recipients of Medicaid provide referrals to teledentistry providers, and allows providers to bill for those services on claim forms.
• New Jersey’s A 3334 made it mandatory for Medicaid to reimburse covered behavioral health services, including those provided through telehealth, by local education agencies to eligible Medicaid beneficiaries.
• North Dakota’s HB 1095 allows comprehensive medication management services to be provided through telehealth and delivered to an enrollee’s residence in Medicaid.

Another recent issue Medicaid programs are confronting is the need to ensure patients are not forced into telehealth visits in some way and that in-person visits remain available upon request.  California had previously tried to address this issue by requiring providers to offer any services offered through telehealth via in-person contact as well or arrange for a referral to, and facilitation of, in-person care.  In the 2023 legislative session, AB 1241 amended this, requiring that instead a provider maintain and follow protocols to either offer those services via in-person face-to-face contact or arrange for a referral to, and a facilitation of, in-person care.

Finally, a new issue that arose this year has been around enrollment requirements by Medicaid programs that require either the provider’s physical presence in the state or a physical address.  This has prompted legislation in a few states forbidding Medicaid programs from implementing such a policy.  For example, Kentucky HB 311 stipulates that Medicaid cannot require a health professional or medical group to maintain a physical location or address in the state to be eligible for enrollment.  Virginia HB 1602 also maintains that a health care provider licensed in Virginia providing services through telemedicine cannot be required to have a physical presence in Virginia to be considered an eligible provider for enrollment as a Medicaid provider.  Likewise, Tennessee SB 680/HB 895 clarifies that the state’s Medical Assistance Act does not require a vendor, healthcare provider, or telehealth provider group that provides healthcare services exclusively via telehealth to have a physical address or site in Tennessee in order to be eligible to enroll as a vendor, provider, or provider group for the medical assistance program as long as the healthcare providers are licensed by the appropriate state licensing authority.

PRIVATE PAYERS

This year CCHP tracked 19 state bills that addressed telehealth private payer reimbursement that were enacted.  Like Medicaid bills, this was also up from 2022 levels, which saw only 12 private payer telehealth bills enacted.  While the majority of states already have laws that require coverage of telehealth in some capacity, much like the trend with Medicaid bills, the legislation that passed this legislative session focused on ensuring specific types of services would be covered by payers.  For example, Arkansas HB 1261 requires coverage for ambulance services to treat an enrollee in place if the ambulance service is coordinating the care through telemedicine with a physician for a medical-based complaint or behavioral health specialist for a behavioral-based complaint.  Louisiana HB 41, meanwhile, requires coverage and payment parity of occupational therapy services delivered via telehealth unless the plan and provider contractually agree to an alternative payment rate.  Oklahoma SB 254 requires health plans cover services provided by a behavioral health provider, even if they are out of network, including medically appropriate telehealth services, if a beneficiary is unable to obtain covered behavioral health services form an in-network provider in a timely manner. In order to stop insurers from exclusively providing telehealth coverage through one company or application (rather than making it widely available to all network providers), Georgia passed SB 20 forbidding an insurer from denying coverage solely based on the communication technology or application used.  It also puts other restrictions on insurers, such as specifying that they shall not require a provider to be a part of a telehealth network, among many other prohibitions. 

A few additional states also amended their private payer laws to address the payment amount that payers can reimburse.   Nevada passed SB 119 which amends Nevada’s private payer law (and requires Medicaid to submit a state plan amendment). The new law requires the same reimbursement amount if services are received at specific types of originating sites (except for audio-only interactions), including FQHCs and RHCs. The same reimbursement amount will also be required for counseling or treatment relating to a mental health condition or a substance use disorder, including without limitation, when such services are provided through audio-only interaction.  Similarly, Nebraska passed LB 296 which requires the reimbursement rate for any telehealth service to be at a minimum the same as a comparable in-person health care service if the provider also provides in-person health care services at a physical location in Nebraska or is employed by or holds medical staff privileges at a licensed facility in Nebraska and the facility provides in-person care services in Nebraska. 

Hawaii went in a different direction with audio-only services, passing HB 907 which maintains payment parity for interactive telecommunication system interactions, but requires that reimbursement for two-way, real-time audio-only communication technology for mental health disorders to the patient’s home to be reimbursed at only eighty percent of the reimbursement for the same in-person service.  It also requires a prior in person visit or telehealth visit that is not audio only within six months prior to the initial audio-only visit or within twelve months prior to any subsequent audio-only visits. This policy is reminiscent of Medicare permanent policy regarding mental health telehealth visits (although not yet implemented in Medicare due to continuation of temporary COVID PHE policies until Dec. 31, 2024).

LICENSING

In total, CCHP tracked 43 cross-state licensing bills that were enacted.  Interstate licensure compacts continue to be the most popular way to address cross-state licensing issues.  CCHP tracked bills that joined states to the Audiology and Speech Language Pathology Compact, Emergency Medical Services Personnel Licensure Interstate Compact (REPLICA), Interstate Medical Licensure Compact, Interjurisdictional Psychology Compact (PSYPACT), Professional Counseling Compact, Physical Therapy Compact, and Occupational Therapy Compact this legislative session, with the Counseling Compact having the largest jump in states joining the Compact this year.  Additionally, three new compacts, the Advanced Practice Registered Nurse Compact, the Social Work Compact and the Physician Assistant Compact have all had legislation introduced in various states with the language, though very few states have joined thus far and are therefore the compacts are not yet operational.

Interstate Compacts are not the only way to allow for cross-state practice.  A few states this legislative session have taken matters into their own hands with some exceptions to licensing rules of their own.  Utah, for instance, passed HB 159 which establishes a temporary license for telemedicine and allows individuals with such a license to provide telemedicine services under certain circumstances.  A temporary license still requires an application for license by endorsement, and would only be applicable when the division that processes the endorsement applications has determined that they will be unable to process the application within 15 days.  Idaho H 61 would allow a mental or behavioral health provider who is not licensed in Idaho to provide services via telehealth to an Idaho resident or person located in Idaho if the provider complies with a variety of requirements, including registering biennially in the state of Idaho.  Virginia SB 1119 modifies licensing exceptions for out of state practitioners utilizing telemedicine for patients within the state who are in the same specialty and who belong to the same group practice.  A few additional states (like Idaho) have also embraced the idea of a telemedicine license or registration as well.  New Mexico HB 384 requires the board to issue a telemedicine license to physicians for practice across state lines and Vermont H 411 allows for the continuation of a telehealth COVID registration option for out of state health care professionals until a permanent telehealth licensure and registration system is operational.

PROFESSIONAL PRACTICE STANDARDS & ONLINE PRESCRIBING

This year, 45 enacted bills dealt with professional requirements around telehealth, and 27 specifically addressed online prescribing requirements, with 12 bills overlapping and addressing both.  Legislation addressing the use of telehealth in specific professions has been on the rise this legislative session.  Bills vary in how they deal with telehealth.  Some go into detail, describing practice standards for specific professions using telemedicine, such as Nevada AB 432 which provides telemedicine requirements for optometry.  While others simply state that telemedicine can be used to establish a provider patient relationship, such as Oregon SB 232 for physicians and physician assistants and Arizona SB 1218 for professions regulated by the medical board.  Finally, Louisiana SB 66 seeks to address the need for in-person care in some circumstances (much like the California Medicaid bill AB 1241 mentioned previously), requiring that a referral be made to an in-state health care provider or the provider arrange for in-state follow-up care if necessary.

Surprisingly, the most common profession to receive statutory language related to regulating use of telehealth this session was veterinarians.  Bills were enacted in five states (Arizona, California, Illinois, Indiana and New Jersey) on the topic.  An example is Arizona SB 1053 which allows a veterinarian to establish a veterinarian client patient relationship (VCPR) by obtaining current knowledge of the animal using an audio-video based communication medium.  Establishing a relationship through electronic means is only allowed when specific criteria are met, including informed consent being obtained from the owner/client, and the veterinarian is able to recommend an in-person alternative, if necessary.  

A number of bills CCHP tracked this legislative session dealt with prescribing medication via telehealth, with a few addressing prescribing in general and others drilling down on controlled substances.  For example, Idaho H 162 amended current prescribing language to allow prescribing via virtual care, as long as the provider is acting within their scope of practice and is held to the same standard of care that applies in an in-person setting.  Tennessee, which has an in-person visit requirement within 16 months prior to an interactive telehealth visit, for prescribing to occur (although its currently waived due to the COVID-19 emergency), passed HB 498/SB 721 exempting a patient receiving an initial behavioral health evaluation from the in-person requirement.  Other bills addressed specific prescribing circumstances, most commonly controlled substances.  Oklahoma HB 2686, for instance, provides an exception from in-person state requirements for the prescribing of a controlled substance via telemedicine if it is a Schedule III, IV or V controlled substance approved by the US Food and Drug Administration (FDA) for medication assisted treatment of detoxification treatment for substance use disorder.  Meanwhile, New Hampshire HB 500 allows a physician and advanced practice registered nurses (APRNs) to prescribe non-opioid and opioid controlled drugs classified in schedule II through IV by means of telemedicine after establishing a physician (or APRN) patient relationship with the patient.  The bill requires subsequent in-person exams to be conducted by a practitioner licensed to prescribe the drug at intervals appropriate for the patient, medical condition, and drug, but not less than annually.  Note that even when there is a state allowance for prescribing controlled substances, providers still must comply with federal requirements related to prescribing controlled substances without an in-person visit.

 

Legislation concerning the use of telehealth to issue medical cannabis certifications has become more prevalent over the last few years.  This session, for example, Connecticut HB 6768, permits physicians, APRNs, and physician assistants to certify a qualifying patient’s use of medical marijuana and provide follow-up care using telehealth if they comply with other statutory certification and recordkeeping requirements. Other specific prescribing scenarios addressed includes Georgia HB 203, which addresses requirements for dispensing contact lenses based on a telehealth evaluation and Illinois SB 1721 which addresses rules for hearing aid prescriptions.  Finally, abortion inducing medication was also addressed in a few cases.  In Florida, SB 300 prohibits physicians from using telehealth to provide abortions or prescribe abortion-inducing medication and requires the physical in-person presence of a physician with a patient when an abortion is performed or medication is dispensed.  Another distinct concern tied to prescribing has also surfaced involving instances where pharmacies decline to dispense prescriptions issued through telemedicine.  Virginia addressed this issue by passing H 2374 which forbids a pharmacy from implementing a policy that prevents pharmacists from dispensing a prescription solely on the basis of the prescriber’s use of a telemedicine platform to provide services.

 

BROADBAND

During the 2023 legislative session, CCHP tracked only three states (4 bills) that enacted bills which addressed broadband as it relates to telehealth explicitly.  Broadband bills tracked were usually broader than just telehealth, addressing the need for wider high-speed broadband as a whole.  For example, California AB 414 was a bill declaring digital equity as a state principle.   As part of that goal, it states that residents should have a right to broadband services to ensure access to telehealth, among other things.  Broadband bills also sometimes implement pilot or grant programs as well. Texas SB 1238, for instance, requires the Broadband Development Office to establish a program to award grants, low-interest loans, and other financial incentives to applicants for the purpose of expanding access to and adoption of broadband service as well as grants for applicants that are focused on expanding affordability, accessibility and adoption of broadband and includes remote learning and telehealth facilities.

 

PILOTS, GRANTS & DEMONSTRATIONS 

CCHP tracked 16 bills that included a study, pilot or demonstration project that was enacted.  Bills that required pilot programs this legislative session typically centered on one specialty type or condition.  Connecticut SB 1075 is an example that requires that not later than Jan. 1, 2024 the Connecticut Department of Public Health shall establish, in collaboration with a hospital in the state, a Hospice Hospital at Home pilot program to provide hospice care to patients in the home through a combination of in-person visits and telehealth.  Maternal care was also a popular specialty area for pilots to focus on.  Arkansas SB 465, for example, requires the Department of Human Services to establish the “Continuum of Care Program” for certain pregnant women and parents in order to facilitate the operation of a statewide telemedicine support network that provides community outreach, consultations and care coordination for women who are challenged with unexpected pregnancies.  Georgia SB 106 requires the Georgia Department of Public Health to release a report on the provision of remote maternal health clinical services in Medicaid in Fiscal Year 2024 and 2025, and Indiana HB 1001 allocates funding toward a women’s telecare pilot program. 

As is often the trend with telehealth studies, behavioral health was another area of interest for pilots.  Nebraska LB 50, for example, requires the Nebraska State Court Administrator to create a pilot program to utilize physical space and information technology resources within Nebraska courts to serve as points of access for virtual behavioral health services for court-involved individuals. The purpose of the program is to provide access to safe, confidential, and reliable behavioral health treatment via telehealth for Nebraskans involved with the criminal justice system, either as defendants, probationers, or victims in a criminal proceeding.  Meanwhile, Maine LD 231 establishes a statewide child psychiatry telehealth consultation service to support primary care physicians who are treating children and adolescent patients and need assistance with diagnosis, care coordination, medication management and other necessary behavioral health questions to serve their patients.  Finally, a pilot centered around telehealth specifically, including its expansion and the effect of payment parity was allocated funds in Minnesota SF 2995.

 

CONCLUSION

2023 legislation saw a deliberate effort in many states to recalibrate and tighten telehealth requirements, particularly for audio-only modalities, as a response to their widespread adoption of telehealth (as well as audio-only specifically) during the COVID-19 pandemic. States grappled with the delicate balance of in-person and physical presence requirements, exemplified by legislation in multiple states noted above, including Tennessee’s reconsideration of its in-person visit mandate for behavioral health and Nebraska’s private payer bill, mandating payment parity only when the provider maintains a physical presence within the state. A notable trend emerged wherein states sought specificity in determining which specialties and providers are eligible for telehealth services, reflecting a departure from vague general statements. This emphasis on clarity was evident across Medicaid, private payer, and professional regulatory frameworks. Simultaneously, as in previous years, states recognized the challenge of cross-state licensing and embarked on diverse approaches, ranging from interstate compacts to in-state licensing and registration processes, all in an effort to navigate the complex terrain of interstate telehealth. As the legislative year concludes, these developments underscore an overall push to harnessing the potential of telehealth while safeguarding its responsible and effective implementation. 

We expect to see many of these same trends noted above continue into 2024, especially as it relates to adding more specificity to telehealth requirements. As telehealth becomes more ingrained in the healthcare system, states are striving to strike the right balance in regulating it. This involves ensuring certain providers, modalities or services are reimbursed, while also creating explicit requirements around certain professions, consent, licensing or prescribing.  2024 legislation will likely also be influenced by federal actions expected next year.  Federal COVID flexibilities around reimbursement for telehealth in Medicare are due to expire December 31, 2024 which will force the Centers for Medicare and Medicaid (CMS) (and potentially lawmakers) to make difficult decisions about the future of telehealth reimbursement in Medicare.  Simultaneously, an in-person requirement for the prescribing of controlled substances is due to go back into effect December 31, 2024 as well, though the Drug Enforcement Agency (DEA) is expected to release regulations that may ease this requirement or create a telemedicine registration.  These actions taken on the federal level may end up serving as a model for states, potentially being replicated or adapted with modifications. 

To read more about the federal landscape in 2024 and what to expect moving forward, see CCHP’s End of Year Review from executive director, Mei Kwong.

 

CCHP knows that telehealth policy can be a complicated subject and from time to time questions about policies related to your specific situation may arise. You’re in luck…We’re here for you!  Just submit your question via our easy to use contact us form, or send an email to info@cchpca.org