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FTC warns boards: Don’t require initial in-person consultations for telehealth

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In an August 16 staff letter, the U.S. Federal Trade Commission warned the Delaware Board of Dietetics/Nutrition that a proposed regulation of the board, requiring that initial consultations be in person before telehealth services could kick in, could unnecessarily discourage the use of telehealth. The staff letter referred to the in-person requirement as a “rigid restriction.”

Earlier in August, the FTC staff made similar comments on a proposed initial in-person evaluation requirement of the Delaware Board of Occupational Therapy Practice, which decided to withdraw the rule.

These staff letters, sent by the FTC’s Office of Policy Planning, Bureau of Economics, and Bureau of Competition, followed others sent in 2016 expressing support for limiting restrictions on telehealth. In March, FTC staff submitted a comment to the Alaska legislature supporting proposed legislation to allow Alaska-licensed physicians located out of state to provide telehealth services in the same manner as in-state physicians.

In 2015, Delaware added telehealth and telemedicine provisions to the practice acts of at least 19 types of health professionals.

“Initial in-person examination or evaluation requirements in the health professions may restrict entry of qualified telehealth practitioners, potentially decreasing competition, innovation, and health care quality, while increasing price,” the FTC staff told the Delaware dietetics board. The FTC suggested that licensees should have discretion to determine whether telehealth is appropriate for the initial evaluation as they are permitted to do for subsequent visits.

The FTC notes that several physician organizations, among others, have recognized the need for flexibility as to the initial evaluation of a patient and have adopted telehealth policies permitting remote examination during an initial encounter so long as a practitioner is held to an in-person standard of care.

“In at least some situations, dietitians/nutritionists may have enough information about a patient to make an initial evaluation by telehealth,” the FTC said. “For example, licensees may receive a patient’s diagnosis, lab data, and other relevant information from a referring physician . . . In addition, dietitians/nutritionists often conduct nutritional assessments of patients at nursing facilities, where nurses and other health professionals would be available to assist with a telehealth evaluation. Finally, some sources support the use of self-reported anthropometric data for certain types of telehealth evaluations by dietitians and nutritionists.”