Telehealth Model Legislation—A Comparison of AMA, FSMB and ULC Model Bills and Guidelines

Health Highlights

The onset of the COVID-19 pandemic spurred a drastic increase in telehealth utilization across the country, which meaningfully changed the way providers deliver care and illuminated novel state telehealth policy design challenges. As the U.S. shifts into a new care paradigm where telehealth is more commonly used to deliver care, states are actively reviewing and updating their telehealth policies, laws and regulations to enable expanded use of telehealth.

The American Medical Association (AMA), Uniform Law Commission (ULC) and Federation of State Medical Boards (FSMB) have recently developed model telehealth bills and guidelines for states to consider when refining their post-public health emergency (post-PHE) telehealth laws, policies and regulations. The AMA is a professional organization that represents physicians and medical students across the country and convenes state medical and national specialty societies and other critical stakeholders. The AMA advocates on behalf of physicians and medical students in legislative bodies and courts, publishes research, and engages with members and the public to promote improvements in medicine and public health.1 The ULC is a nonprofit legal organization that promotes the enactment of uniform acts in areas of state law where uniformity across states is practical.2 The FSMB is a national nonprofit organization that represents and provides support to state medical and osteopathic boards to facilitate oversight of licensing, discipline and regulation of health care professionals.3

Given the varying nature of these organizations and the stakeholders they represent, each organization had unique goals driving the development of their respective model telehealth bill language and guidelines:

  • The AMA developed various model bills, including “Telehealth Licensure Act,” “Telehealth Practice Act,” and “Telehealth Coverage and Payment Act,” which collectively seek to provide a foundation for a “modern state medical practice act” that promotes wider adoption of telehealth while preserving patients’ relationships with their established care team members.
  • The ULC has designed the draft “Telehealth Act,” which aims to reinforce that health care services can be provided via telehealth, so long as doing so is consistent with a provider’s scope of practice and other professional practice standards. It also seeks to provide guidance related to the development of out-of-state telehealth provider registration systems.4
  • The FSMB issued model guidelines titled “The Appropriate Use of Telemedicine Technologies in the Practice of Medicine,” which are designed to educate licensed medical practitioners and the broader public on the use of telehealth following the COVID-19 PHE and provide guidance to state medical boards to regulate telehealth in medical practice in a manner that ensures patient access to the convenience and benefits available through telehealth while promoting responsible and appropriate use of telehealth technologies.5

This newsletter provides a detailed comparative analysis of the key components of the model telehealth bills and guidelines issued by these organizations.

High-Level Comparative Analysis: How Do the Model Bills and Guidelines Differ Across Key Policy Areas?

The model bills and guidelines cover similar pertinent telehealth policy issues brought to light by the COVID-19 pandemic. All three organizations delineate requirements for out-of-state licensure and address, to varying degrees, coverage and payment of telehealth services. The AMA bill is more comprehensive in nature; it includes model language across a broader range of policy areas that are not addressed by the ULC and the FSMB, including considerations related to originating sites and accounting for telehealth within network adequacy standards. The following are high-level differences across the model bills and guidelines by key policy areas; a more detailed analysis with supporting source language is included in the table below:

  • Definitions: Definitions are mostly similar in nature across the model bills and guidelines, which use the term “telehealth” or “telemedicine” to refer to the delivery of care between a provider and patient. The AMA bill and the FSMB guidelines specify modalities within definitions, such as video visits, audio-only visits, and store and forward; both explicitly exclude email and fax.
  • Coverage: The AMA bill explicitly requires coverage parity, while the ULC bill and the FSMB guidelines provide commentary on coverage but do not explicitly require or suggest coverage parity.
  • Payment: The FSMB guidelines include a payment parity provision, while the AMA bill includes a “fair and equitable” payment provision. The ULC bill is silent on payment.
  • Establishment of Provider-Patient Relationship: All three model documents allow the establishment of a provider-patient relationship via telehealth. Only the AMA model bill specifies which modalities may be used to establish a relationship and outlines specific scenarios in which a provider may connect with a new patient via telehealth.
  • Out-of-State Telehealth Providers: Both the AMA bill and the FSMB guidelines include language that would require physicians to be appropriately licensed in the state where the patient is located, with some exceptions. The ULC bill outlines circumstances when a provider may deliver telehealth services across state lines and proposes the creation of a telehealth registration system for out-of-state telehealth providers.
  • Informed Consent: The FSMB guidelines include detailed consent requirements and terms (e.g., identification of patient/provider location), along with types of transmissions permitted using telehealth technologies. The AMA and ULC bills do not outline specific consent requirements but direct providers to follow relevant state and federal statutes and regulations on informed consent.
  • Telehealth Networks/Telehealth-Only Providers: Both the AMA bill and the FSMB guidelines include model language that would prohibit plans from limiting telehealth coverage to “select corporate telehealth providers” or having separate networks for “select telehealth networks,” respectively. The ULC bill is silent on this matter.
  • Network Adequacy: Only the AMA bill includes language on network adequacy, which would prohibit plans from meeting network adequacy standards through “significant reliance on telehealth.”

Detailed Comparative Analysis With Supporting Source Language:

  AMA
“Telehealth Licensure Act”; “Telehealth Practice Act”; “Telehealth Coverage and Payment Act”

ULC
“Telehealth Act” 
Draft as of June 29

FSMB
“The Appropriate Use of Telemedicine Technologies in the Practice of Medicine”
Definitions (telehealth, telemedicine)

Defines the terms “telemedicine” and “telehealth” synonymously to mean health care services delivered by a physician to a patient or between two physicians via the following modalities:

  • Video visits
  • Audio-only visits*
  • Store and forward
  • Remote patient monitoring provided the applicable standard of care is satisfied.

The following modalities are explicitly not included within the definition:

  • Fax
  • Email
  • Questionnaires

*Physicians who offer audio-only visits must also have the capacity to conduct a video visit.

“A practitioner may provide telehealth services to a patient located in this state if the services are consistent with the practitioner’s scope of practice in this state, the applicable professional practice standards in this state, and the requirements and limitations of federal law and law of this state. (b) This [act] does not authorize provision of health care otherwise regulated by federal law or law of this state, unless the provision of that health care complies with the requirements, limitations and prohibitions of that federal or state law.

“‘Telemedicine’ or ‘telehealth’ means health care services provided to a patient in one location from a physician in another location or between two physicians using electronic communication for the purpose of diagnosis, consultation, or treatment. Acceptable modalities include real-time two-way audio-visual, audio-only, store and forward, and remote physiological monitoring, provided the applicable standard of care is satisfied. For audio-only to qualify as an acceptable modality, the physician must have the capacity to provide services via real-time two-way audio visual. “Telemedicine or telehealth does not include fax, email, or questionnaires.”

Defines the term “telehealth” to mean the delivery of health care services by a provider located in a different physical location than a patient using synchronous or asynchronous telecommunication technology.

“‘Telehealth’ means use of synchronous or asynchronous telecommunication technology by a practitioner to provide health care to a patient at a different physical location than the practitioner.”

Defines the term “telemedicine” to refer to health care services delivered from a licensee to a patient with or without an intervening health care provider via the following modalities:

  • Video visits
  • Audio-only visits (when the patient is unable or unwilling to access video modalities, or when audio-only visits are the standard of care for the service being provided)
  • Store and forward

 The following modalities are not included within the definition of “telemedicine”:

  • Email/instant messaging
  • Fax

 “‘Telemedicine’ means the practice of medicine using electronic communications, information technology or other means between a licensee in one location and a patient in another location, with or without an intervening healthcare provider. Telemedicine is not an e-mail/instant messaging conversation or fax-based interaction. It typically involves the application of secure videoconferencing or store and forward technology to provide or support healthcare delivery by replicating the interaction of a traditional, in-person encounter between a provider and a patient. Telemedicine may include audio-only communications, but audio-only communications should only be used as a substitute when a patient is unable or unwilling to access live-interactive modalities or when audio-only interactions are considered the standard of care for the corresponding healthcare service being delivered.”

Coverage

Requires coverage parity between telehealth and in-person services for services that can be appropriately delivered via telehealth.

“Each carrier offering a health plan in this state shall provide coverage for health care services provided through telehealth on the same basis and to the same extent that the carrier is responsible for coverage for the provision of the same service through in-person treatment or consultation.

A carrier offering a health plan in this state shall not exclude a service for coverage solely because the service is provided through telehealth and is not provided through in-person consultation or contact between a physician and a patient for services appropriately provided through telehealth.”

No reference found.

Does not create an explicit coverage parity requirement, but indicates that limiting coverage of telehealth-eligible services may drive inequities in access to care via telehealth.

“Limiting coverage may lead to additional inequities in the delivery of healthcare via telemedicine.”

Payment

Requires “fair and equitable” payment for telehealth services.

“A carrier offering a health plan in this state shall pay for services provided via telehealth in the same manner as other covered services and at a fair and equitable rate. Unless otherwise determined through contract negotiations, a service shall be paid based on the existing contracted rate regardless of whether the service is provided in-person or via telehealth.”

No reference found.

Requires payment parity for telehealth services.

“Health plans should provide coverage for the cost of healthcare services provided through telemedicine on the same basis and to the same extent that the carrier is responsible for coverage through in-person treatment or consultation.”

Establishment of Provider-Patient Relationship

Allows physicians to establish a relationship with a patient via video visit, audio-only visit, or store and forward provided the standard of care is met via that modality.

Lists explicit scenarios in which physicians are allowed to connect with patients via telehealth (e.g., between a physician and patient with a pre-existing relationship, emergency situations).

“If a physician providing treatment via telehealth does not have an established physician-patient relationship with a person seeking such treatment, the physician shall take appropriate steps to establish a physician-patient relationship by use of two-way audio-visual interaction, audio-only, or store-and-forward technology; provided however, that the applicable [State] standard of care must be satisfied.”

Allows providers to establish a relationship with a patient through telehealth; does not specify eligible modalities.

“A practitioner-patient relationship may be established through telehealth.”

Allows providers to establish a relationship with a patient via synchronous or asynchronous telemedicine, provided the standard of care is met via that modality and the identity of the physician is known to the patient.

If possible, a patient should be able to select their provider and have access to follow-up care.

“A physician-patient relationship may be established via either synchronous or asynchronous telemedicine technologies without any requirement of a prior in-person meeting, so long as the standard of care is met.”

“An appropriate physician patient relationship has not been established when the identity of the physician may be unknown to the patient. If available, a patient should be able to select an identified physician for telemedicine services, not be assigned to a physician at random, and have access to follow-up care.”

Out-of-State Telehealth Providers

Requires physicians treating patients to be appropriately licensed in the state where the patient is located, with exceptions:

  • Informal consultations or second opinions at the request of a physician licensed in the state who retains authority and responsibility for the patient’s care
  • Medical assistance during a disaster or emergency

 Allows appropriately licensed out-of-state physicians in states with a cross-state licensure mechanism (e.g., waiver, licensure reciprocity or exception) to deliver telehealth services to in-state patients if they:

  • Have an established and ongoing relationship;
  • Have previously treated the patient in person; and
  • Are delivering care that is incident to an existing care plan or one that is being modified.

“Physicians treating patients in [State] through telemedicine or telehealth must be fully licensed to practice medicine in [State] and shall be subject to regulation by the [State] Board of Medicine.

This section does not apply to:

(1) An informal consultation or second opinion, at the request of a physician licensed to practice medicine in this state, provided that the physician requesting the opinion retains authority and responsibility for the patient’s care; and

(2) Furnishing of medical assistance by a physician in case of an emergency or disaster.

The [State] Board of Medicine provides a(n) [insert mechanism based on other provisions in state law or regulations, e.g. waiver, exception to licensure, reciprocity of license from another state, temporary license, and/or requirement that physician register with state board of medicine] to physicians who have a full and unrestricted license to practice medicine in another state who provide care via only telehealth in [State] to a patient located in [State] with whom the physician has an established and ongoing patient-physician relationship; has treated the patient in-person; the care provided via telehealth is incident to an existing care plan or one that is being modified; and the physician has verified that the telehealth services are covered under the physician’s medical liability insurance policy that satisfies [State] requirements.”

Allows practitioners to deliver telehealth services to a patient located in a different state if they:

  • Are licensed in the state where the patient is located or are otherwise authorized to provide services in the state (e.g., through a multistate telehealth compact);
  • Register with the board responsible for certification and licensing of out-of-state practitioners in the applicable practice area; or
  • Deliver telehealth care:
    • In collaboration with a provider who previously established a relationship with the patient
    • As connected to a specialty diagnosis or treatment recommendation
    • Pursuant to a previously established patient-provider relationship

Creates a telehealth registration system for out-of-state providers who are not licensed or certified in a state and are seeking to deliver telehealth services there. Requires states to identify a board to register out-of-state practitioners if they:

  • Complete an application in the form requested by the board;
  • Hold an active and comparable license/certification in another state;
  • Are not currently facing disciplinary action in another state;
  • Have not faced disciplinary action in another state in the past five years, nor any disciplinary action with such severity to constitute a basis to deny licensing or certification; and
  • Have liability insurance that covers telehealth services for patients in the applicable state.

“(a) An out-of-state practitioner may provide telehealth services to a patient located in this state if the out-of-state practitioner:

(1) holds a license or certification required to provide the health care in this state or is otherwise authorized to provide the health care in this state, including through a multistate compact of which this state is a member;

(2) registers under Section 6 with the registering board responsible for licensing or certifying practitioners who provide the type of health care the out-of-state practitioner provides; or

(3) provides the telehealth service:
(A) in consultation with a practitioner who has established a practitioner-patient relationship with the patient;
(B) in the form of a specialty assessment, diagnosis, or recommendation for treatment; or
(C) pursuant to a previously established practitioner-patient relationship [if the telehealth services are provided not later than [one year] after the practitioner with whom the patient has a relationship last provided health care to the patient].”

“Section 6:
(a) A board established under [cite to relevant state statutes] shall register, for the purpose of providing telehealth services in this state, an out-of-state practitioner not licensed, certified, or otherwise authorized to provide health care in this state, if the practitioner:

(1) submits a completed application in the form prescribed by the registering board;

(2) holds an active, unrestricted license or certification in another state that is substantially similar to a license or certification issued by the board to provide health care;

(3) is not subject to a pending disciplinary investigation or action by a board;

(4) has not been the subject of disciplinary action by a board during the [five] year period immediately before submitting the application, other than an action relating to a fee payment or continuing education requirement addressed to the satisfaction of the board that took the disciplinary action;

(5) never has been subject to a disciplinary investigation or action that the registering board determines would be a basis for denying a license or certification in this state;

(6) consents to personal jurisdiction in this state;

(7) appoints a [registered][statutory] agent for service of process in this state in accordance with other law of this state and identifies the agent in the form prescribed by the registering board;

(8) has professional liability insurance that includes coverage for telehealth services provided to patients located in this state, in an amount equal to or greater than the requirement for a practitioner providing the same services in this state; and

(9) pays the registration fee.”

Requires physicians treating patients to be appropriately licensed in the state where the patient is located, with exceptions:

  • Physician-to-physician consultations
  • Prospective patient screening for complex referrals
  • Follow-up care to a patient temporarily located out of state
  • Follow-up after travel for surgical/medical treatment
  • Clinical trials

“A physician must be licensed, or appropriately authorized, by the medical board of the state where the patient is located. The practice of medicine occurs where the patient is located at the time that telemedicine technologies are used.”

“There are a few instances, however, where certain exceptions may permit the practice of medicine across state lines without the need for licensure in the jurisdictions where the patient is located.

Exceptions include:

  • Physician-to-physician consultations
  • Prospective patient screening for complex referrals
  • Episodic follow-up care with a patient temporarily located outside the jurisdiction of the physician
  • Follow-up after travel for surgical/medical treatment
  • Clinical trials”
Informed Consent

Does not outline specific consent requirements, but directs physicians to follow state and federal statutes and regulations on informed consent.

“The physician must follow applicable state and federal statutes and regulations for informed consent.”

Physicians must also, as part of the evaluation and treatment of a patient, verify the location and identify the requesting patient; disclose and validate the physician’s identity and credentials; and obtain appropriate consents, including informed consent on the modality used.

“(D) Physicians who utilize telehealth shall, if such action would otherwise be required in the provision of the same service delivered in-person:

(1) verify the location and, to the extent possible, identify the requesting patient;
(2) disclose and validate the physician’s identity and applicable credential(s); [and]
(3) obtain appropriate consents from requesting patients after disclosures regarding the delivery models and treatment methods or limitations, including informed consents regarding the specific telehealth modality to be used … .”

Does not outline specific consent requirements, but requires providers to follow the informed consent standards of practice for in-person health care in the state.

“(a) A practitioner shall provide telehealth services to a patient located in this state in a manner consistent with the professional practice standards applicable to a practitioner who provides comparable in-person health care in this state. Professional practice standards and law applicable to the provision of health care, including standards and law relating to identity verification, documentation, informed consent, confidentiality, privacy, and security, apply to the provision of telehealth services.”

“3. A physician required to obtain informed consent for in-person care must also obtain informed consent for comparable telehealth services.”

Requires that providers document appropriate patient informed consent for telemedicine, including the following terms:

  • Identification of (1) patient and patient location; (2) physician, his or her credentials, and his or her location; and (3) patient’s primary care physician
  • Types of transmissions permitted using telehealth technologies
  • The patient’s agreement that the physician has discretion over whether the visit is appropriate for telemedicine
  • Details on security measures taken with the use of telemedicine technologies
  • Hold harmless clause for information lost due to technical failures
  • Requirement for express patient consent to forward patient-identifiable information to a third party

 “Evidence documenting appropriate patient informed consent for the use of telemedicine technologies must be obtained and maintained. Appropriate informed consent should, as a baseline, include the following terms:

  • Identification of the patient and the patient’s location
  • Identification of the physician, the physician’s credentials, and the physician’s state or territory of practice;
  • Identification of the patient’s primary care physician, if available;
  • Types of transmissions permitted using telemedicine technologies (e.g. prescription refills, patient education, etc.);
  • The patient agrees that the physician determines, in conjunction with applicable laws, whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter;
  • Details on security measures taken with the use of telemedicine technologies, such as encrypting data, enabling password protection of data files, or utilizing other reliable authentication techniques, as well as potential risks to privacy notwithstanding such measures;
  • Hold harmless clause for information lost due to technical failures; and
  • Requirement for express patient consent to forward patient-identifiable information to a third party, if consistent with state and federal law.”
Telehealth Networks/ Telehealth- Only Providers

Prohibits plans from limiting telehealth coverage to “select corporate telehealth providers.”

“Coverage must not be limited only to services provided by select corporate telehealth providers.”

No reference found.

Prohibits health plans from having separate networks for telehealth or “select telehealth providers.”

“Health plans should not have separate networks for telehealth or select telehealth providers.”

Network Adequacy

Prohibits plans from meeting federal or state network adequacy requirements through significant reliance on telehealth.

“A carrier offering a health plan in this state shall not meet federal or state network adequacy requirements through significant reliance on telehealth providers and shall not be considered to have an adequate network if patients are not able to access appropriate in-person services in a timely manner.”

No reference found. No reference found.

1 https://www.ama-assn.org/about#:~:text=Founded%20in%201847%2C%20the%20American,societies%20and%20other%20critical%20stakeholders

2 https://www.uniformlaws.org/aboutulc/overview

3 https://www.fsmb.org/about-fsmb/

4 Uniform Law Commission, Telehealth Act

5 Report of the FSMB Workgroup on Telemedicine: The Appropriate Use of Telemedicine Technologies in the Practice of Medicine

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