Delaware Board Tries to Limit Telehealth Use for Nutritionists

September 15, 2016 - Another state agency is trying to prevent healthcare providers from using telehealth to meet new patients.

The Delaware Board of Dietetics/Nutrition is proposing an amendment to the state’s year-old telehealth law that would limit first-time visits between a licensed dietician or nutritionist and patients to in-person visits. The amendment, 24 Del. Admin. Code 3800-9.2.4.4, specifically requires that “(a)ll initial evaluations she be performed face to face and not through telehealth.”

State officials have said the board’s goal is to protect the health and safety of patients and ensure that the healthcare provider establishes a proper relationship with a new patient before moving to a virtual platform.

The proposal could affect thousands of nutrition therapy specialists who offer such services as follow-up care for post-discharge hospital patients, health plan consults, chronic care management and home nutrition programs for seniors and those with disabilities. In fact, medical nutrition therapy is included in the list of services reimbursable under Medicare and Delaware’s Medicaid program, and is recognized as a reimbursable benefit by the Department of Veterans Affairs and the Indian Health Services, as well as several private payers.

Among those disagreeing with the board’s proposal is the Federal Trade Commission, which is arguing that nutritionists and dieticians should be able to determine whether to use telehealth as a first means of contact with a patient.

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In an August 16 letter to LaTonya Brown, administrator for the Delaware Board of Dietetics/Nutrition, the FTC said the proposed rule “may unnecessarily discourage the use of telehealth and limit its potential benefits.”

“Although we are unaware of published guidance or position statements by dietitian or nutritionist organizations regarding the use of telehealth for an initial evaluation, several physicians’ organizations have recognized the need for flexibility with regard to the initial evaluation of a patient,” the letter continued. “These organizations have adopted telehealth policies permitting remote examination of a patient during an initial encounter, so long as a practitioner is held to an in-person standard of care. By contrast, initial in-person examination or evaluation requirements in the health professions may restrict entry of qualified telehealth practitioners, potentially decreasing competition, innovation and healthcare quality, while increasing price.”

The FTC noted that Delaware’s lawmakers enacted legislation in 2015 that opened the door for more telehealth and telemedicine services; more recently, the state’s Board of Occupational Therapy Practice passed on adding language to its regulations that would have required an initial in-person evaluation.

“The rigid restriction in the board’s proposed regulation could be avoided by allowing a licensee to determine whether telehealth is appropriate for the initial evaluation as they are permitted to do for subsequent visits,” the FTC suggested.

The agency also noted that dieticians or nutritionists could receive a patient’s medical records and a physician’s referral prior to the initial visit, giving them enough information to conduct that visit via telehealth. They might also use telehealth to visit patients in nursing homes or other care facilities, where a nurse or other health professional would be available to assist with the session.

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“In these situations and others, allowing a licensee to decide whether to use telehealth for the initial evaluation could encourage the use of telehealth and would be consistent with (the board’s proposal), which would make the licensee ‘responsible for determining and documenting that telehealth is an appropriate level of care,’” the FTC wrote.

Also chiming in on the proposed legislation is the ERISA Industry Committee (ERIC), a national trade association lobbying for employee benefit and compensation interests of the nation’s largest employers. In an August 26 letter, Alison Wils, the organization’s director of health policy, urged the board to do away with the in-person rule.

“There should not be artificial barriers that unnecessarily limit access to medical services provided through telehealth when there are existing requirements in place to hold providers to high standards of care,” she wrote. “ERIC urges the board to consider striking the proposed requirement that requires initial evaluations to be performed ‘face to face and not through telehealth’ and instead use standards expressed in existing rules to maintain a high standard of care, and permit licensees to exercise their professional judgment on a case-by-case basis to determine whether telehealth is appropriate for an initial encounter.”

Dig Deeper:

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