November 1, 2017
Director, Regulation Policy and Management (00REG)
Department of Veterans Affairs
810 Vermont Ave. NW., Room 1063B
Washington, DC 20420
Re: RIN 2900-AQ06-Authority of Health Care Providers to Practice Telehealth
Dear Sir or Madam,
The Academy of Nutrition and Dietetics (the "Academy") appreciates the opportunity to submit comments to the United States Department of Veterans Affairs (VA) related to its October 2, 2017 docket item, "RIN 2900-AQ06-Authority of Health Care Providers to Practice Telehealth." Representing more than 100,000 registered dietitian nutritionists (RDNs),1 dietetic technicians, registered (DTRs), and advanced-degree nutritionists, the Academy is the largest association of food and nutrition professionals in the United States and is committed to providing nutrition services to the public in multiple settings, including through the VA.
A. Preemption of State Licensure Laws Regarding Telehealth
Policies regarding telehealth services under various government programs and departments are antiquated and do not adequately address the needs of patients, providers, or the programs themselves. We recognize and appreciate the efforts of the VA to modernize and simplify its telehealth policies to meet the needs of veterans seeking care. The emergence and rapid growth of telehealth and mobile technologies designed to improve the health of individuals, enhance patient engagement and lower costs should be encouraged, as they offer new opportunities to increase access to care in urban, suburban and rural areas. Time spent by all qualified health care professionals (both physician and non-physician providers) using such technologies for assessment, treatment, evaluation and monitoring functions need to be recognized; regulators such as the VA are primed to expand traditional telehealth service policies beyond the current restrictions.
RDNs experience similar difficulties practicing across state lines as other professionals, such as nurses and physicians, but also experience licensure issues unique to the profession. Many dietetics licensure statutes currently permit licensure by endorsement or include specific exemptions authorizing practice for a limited number of days in a state in which one is not licensed. These approaches have been criticized as being confusing, costly and inefficient.
Unique problems with dietetics licensure by endorsement or reciprocity among states arise from the fact that there is variation among the standard qualifications for nutritionists and dietitians in many (but not all) licensure statutes. Alaska, Kentucky, Montana, North Dakota, Washington, and several other states have licensure or certification requirements for individuals that they license as a "nutritionist" that fall far below the federal standard for the "registered dietitian or nutrition professional" as codified in the Social Security Act.2 This difference in standards could increase risk for harm to consumers by potentially authorizing unqualified practitioners to provide Medical Nutrition Therapy (MNT) and nutrition counseling who have taken as few as three nutrition courses in subjects such as "nutrient depletion & drug/herb interactions" or "dietary supplements."
The VA has been effective in ensuring that individuals employed as dietitians in VA hospitals hold and maintain unparalleled qualifications, even though they may supersede lower state licensure requirements. We agree with the VA that, "Just as it is critical to ensure there are qualified health care providers on-site at all VA medical facilities, VA must ensure that all beneficiaries, specifically including beneficiaries in remote, rural, or medically underserved areas, have the greatest possible access to mental health care, specialty care, and general clinical care." The VA has (1) the rigorous hiring requirements, (2) oversight mechanisms, and (3) responsibilities to report providers to the National Practitioner Data Bank and state licensure boards to ensure providers are qualified and will be subject to state licensure laws in the event they leave the VA for alterative employment.
With regards to the proposed rule, the Academy seeks clarification from the VA whether all provisions of state licensure laws are intended to be preempted, or a more narrow subset regarding the ability to practice across state lines. If the VA is seeking to preempt a more narrow subset, we seek clarification about how that will be defined prior to finalizing the proposed rule.
B. Abbreviated Notice and Comment Period
The Academy notes with regret what appears to be a growing pattern among various departments to dramatically reduce the opportunity and time for public comment. Here, the VA rationalizes reducing the amount of time for interested parties to comment by 50% by stating, "Given the importance of telehealth in providing critical, and potentially lifesaving, access to health care for our beneficiaries, VA must act expeditiously, through this rulemaking, to ensure that it can expand its telehealth program." The Academy is strongly supportive of the goals of this proposed rule, but strongly suggests that before departments deny the public sufficient time for notice and comment, they provide documented evidence supporting their rationale. We urge the VA and other federal departments to comply with the spirit and the letter of Executive Order 12866:
In particular, before issuing a notice of proposed rulemaking, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State, local, and tribal officials). In addition, each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days.3
The Academy appreciates the opportunity to comment on the proposed rule, Authority of Health Care Providers To Practice Telehealth. Please contact either Jeanne Blankenship at 312/899-1730 or by email at email@example.com or Pepin Tuma at 202/775-8277, ext. 6001 or by email at firstname.lastname@example.org with any questions or requests for additional information.
Jeanne Blankenship, MS, RDN
Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics
Pepin Andrew Tuma, Esq.
Government & Regulatory Affairs
Academy of Nutrition and Dietetics
1 The Academy approved the optional use of the credential "registered dietitian nutritionist (RDN)" by "registered dietitians (RDs)" to more accurately convey who they are and what they do as the nation’s food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.
2 42 U.S.C. 1395(vv)(2) ("[T]he term 'registered dietitian or nutrition professional' means an individual who—
A. holds a baccalaureate or higher degree granted by a regionally accredited college or university in the United States (or an equivalent foreign degree) with completion of the academic requirements of a program in nutrition or dietetics, as accredited by an appropriate national accreditation organization recognized by the Secretary for this purpose;
B. has completed at least 900 hours of supervised dietetics practice under the supervision of a registered dietitian or nutrition professional; and
i. is licensed or certified as a dietitian or nutrition professional by the State in which the services are performed; or
ii. in the case of an individual in a State that does not provide for such licensure or certification, meets such other criteria as the Secretary establishes.
3 Executive Order 12866, Regulatory Planning and Review (58 FR 51735; October 4, 1993).