FTC Staff Comment to the Delaware Board of Dietetics/Nutrition Regarding Its Proposed Telehealth Regulation

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UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
Bureau of Economics
August 16, 2016
LaTonya Brown
Administrator of the Delaware Board of Dietetics/Nutrition
Delaware Board of Dietetics/Nutrition
Cannon Building
861 Silver Lake Blvd.
Dover, DE 19904
Dear Ms. Brown:
The staffs of the Federal Trade Commission’s (“FTC”) Office of Policy Planning, Bureau
of Economics, and Bureau of Competition1 (collectively, “FTC staff”) appreciate the opportunity
to respond to the Board of Dietetics/Nutrition’s (“Board”) notice requesting comments on its
proposed telehealth regulation, 24 Del. Admin. Code § 3800-9.2 The proposed regulation follows
the Delaware legislature’s amendment in 2015 to the state’s Insurance and Professions and
Occupations codes to encourage the use of telehealth and telemedicine, including for the
provision of dietetic and nutrition services. The proposed Board regulation could promote the use
of telehealth and potentially enhance competition and patient care by allowing licensed
dietitians/nutritionists (“licensees”) to determine whether telehealth is an appropriate level of
care for a patient and to provide dietetics and nutrition services through telehealth. It could
enhance consumer choice by providing an alternative to in-person care, potentially reducing
travel costs and increasing access to care. The proposed regulation, however, would limit the
flexibility of the revised Delaware code by requiring that “[a]ll initial evaluations shall be
performed face to face and not through telehealth.”3 Delaware’s 2015 telemedicine law for
dietitians and nutritionists broadly defines the potential for telemedicine to include assessment
and diagnosis, as well as subsequent phases of care.4 The proposed regulation could
unnecessarily discourage the use of telehealth for assessment and diagnosis and restrict consumer
choice.
Regulators play an important role in determining the optimal balance of policy priorities
when defining the appropriate scope of practice for health care professionals. Unnecessarily
broad scope of practice restrictions, however, can impose significant competitive costs. Thus, we
encourage regulators to avoid restrictions that do not address well-founded patient safety
concerns, especially if they go beyond the scope of the enabling statute. As the Board conducts

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its due diligence regarding the health and safety consequences of initial evaluations by telehealth,
we encourage the Board to consider the implications for competition and consumer welfare if the
use of telehealth is restricted for initial evaluations.
I. 	Interest and Experience of the Federal Trade Commission
The FTC is charged under the FTC Act with preventing unfair methods of competition
and unfair or deceptive acts or practices in or affecting commerce.5 Competition is at the core of
America’s economy,6 and vigorous competition among sellers in an open marketplace gives
consumers the benefits of lower prices, higher quality products and services, and increased
innovation. Because of the importance of health care competition to the economy and consumer
welfare, anticompetitive conduct in health care markets has long been a key focus of FTC law
enforcement,7 research,8 and advocacy.9 In particular, many of our recent state advocacy
comments have addressed scope of practice and supervision provisions that unnecessarily limit
the range of procedures or services a practitioner may provide, or unnecessarily restrict a
particular type of practitioner from competing in the market.10
Telehealth is an area of particular interest to the FTC because of its potential to increase
practitioner supply, encourage competition, and improve access to affordable, quality health
care. In a 2004 report, the federal antitrust agencies considered the competitive effects of state
restrictions on the interstate practice of telemedicine,11 and the central finding of that analysis
remains applicable today: “When used properly, telemedicine has considerable promise as a
mechanism to broaden access, lower costs, and improve health care quality.”12 More recently,
FTC staff submitted a comment to the Alaska legislature supporting proposed legislation that
would allow Alaska-licensed physicians located out-of-state to provide telehealth services in the
same manner as in-state physicians.13 Staff also commented a few weeks ago on the Delaware
Board of Occupational Therapy Practice’s proposed Telehealth regulation.14 The conclusions of
the agencies’ 2004 report and the prior FTC staff comments, which support reduction of barriers
to telemedicine, underpin our comments in this letter.15
II. 	Delaware Law and the Proposed Telehealth Regulation for Dietitians/Nutritionists16
A. 	Delaware’s Telehealth and Telemedicine Law for Dietitians/Nutritionists
In 2015, Delaware’s legislature amended its Insurance and Professions and Occupations
codes to enhance the use of telehealth and telemedicine services,17 recognizing the potential
patient benefits from the broader use of telemedicine and telehealth. The legislation added
definitions of telehealth, telemedicine and related terms to the practice act for each health care
occupation,18 with the intent of providing greater access to health care by encouraging insurers
and health care professionals to support and promote the use of telemedicine and telehealth.19
The Dietitian/Nutritionist Licensure Act was among those amended by the legislation to
address telehealth and telemedicine services.20 The law’s definition of “telemedicine” broadly
sets the stage for licensees to deliver all phases of care remotely, including “assessment,
diagnosis, consultation, treatment, education, care management and self-management of a
patient’s health care . . . .”21 The law also calls for a licensee using telemedicine to practice

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“within his or her scope of practice as would be practiced in-person with a patient and with other
restrictions as defined in regulation.”22
B. 	Delaware’s Proposed Telehealth Regulation for Dietitians/Nutritionists
The proposed regulation would define telehealth as the use of electronic communications
for a variety of health care and health promotion activities by dietitians/nutritionists, “including
education, advice, reminders, interventions, and monitoring of interventions.”23 The proposed
regulation would hold licensed dietitians/nutritionists using telehealth to deliver services to
existing in-person standards of care.24
The proposed regulation would also generally rely on the judgment of licensees to
determine whether to use telehealth by making them “responsible for determining and
documenting that telehealth is an appropriate level of care for the patient.”25 However, the
regulation departs from this paradigm by imposing a rigid requirement that “[a]ll initial
evaluations shall be performed face to face and not through telehealth.”26 This prohibition on the
use of telehealth for initial evaluations would limit the range of services that could potentially be
available to consumers under the law’s definition of telemedicine, which contemplates licensees’
discretion to use electronic communication for assessment and diagnosis, as well as during
subsequent treatment, education, and care management.27
III. 	Likely Competitive Impact of Delaware’s Proposed Telehealth Regulation
A. 	Potential of Telehealth to Increase Competition and Access to
Dietetics/Nutrition Services
Generally, competition in health care markets benefits consumers by containing health
care prices, expanding access and choice, and promoting innovation. Telehealth can potentially
increase the supply of practitioners and thereby enhance price and non-price competition, reduce
transportation costs, and improve access to quality care.28
As a delivery model for dietetic and nutritional services, telehealth has the potential to
enhance competition among providers and improve access to quality care.29 The Delaware
Division of Public Health has specifically recognized these potential benefits.30 Similarly, many
health care professionals and expert bodies support the use of telehealth to mitigate challenges in
access to health care arising from an aging population, health care workforce shortages, and
geographic and other maldistributions of providers that can lead to shortages in urban as well as
rural areas. 31 Indeed, the Delaware State Plan on Aging acknowledges that the elderly and
individuals with disabilities could greatly benefit from the use of telehealth.32 The potential for
better health outcomes and improved access to cost-effective medical care motivated the
Delaware Medicaid Program’s 2012 decision to reimburse services delivered by telemedicine,
including medical nutrition therapy.33 The use of telehealth to deliver dietetics/nutrition services
and other health care services could also help reduce Medicaid’s transportation expenditures as
well as individuals’ pecuniary and time costs.34
Dietitians and nutritionists can provide many preventive and therapeutic nutritional
services, such as nutritional care for weight management, diabetes, and kidney disease,

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remotely.35 In 2000, the U.S. Congress recognized the value in providing medical nutrition
therapy services for diabetes and renal disease management via telehealth, and added dietitians
and nutritionists to the list of practitioners authorized to provide telehealth services to Medicare
beneficiaries.36 Subsequent regulatory changes expanded the list of covered telehealth services to
include individual medical nutrition therapy and group nutrition services.37 The U.S. Department
of Veterans Affairs, the Indian Health Services, and Delaware’s Medicaid program, among
others, have recognized the benefits of tele-nutrition services, as have some private payers that
cover telehealth nutrition services.38
B. 	The Proposed Prohibition on the Use of Telehealth for Initial Evaluations
Could Unnecessarily Discourage the Use of Telehealth
The proposed regulation could foster the delivery of dietetics/nutrition services via
telehealth, thereby increasing competition, consumer choice, and access to care. Proposed
§ 9.2.4.2 would hold licensees to existing in-person standards of care, and § 9.2.4.1 would
entrust the decision whether to use telehealth to the practitioners best positioned to make that
determination.39 These aspects of the proposed rule provide flexibility that could encourage
telehealth delivery of dietetics/nutrition services.
However, because § 9.2.4.4 would require that all initial evaluations be performed in
person, the proposed regulation may unnecessarily discourage the use of telehealth and limit its
potential benefits.40 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. 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.41 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 health care quality, while increasing price.42
Thus, several state legislatures and health care regulatory boards, including Delaware’s Board of
Occupational Therapy Practice, have recently eliminated or declined to adopt provisions
requiring an initial in-person evaluation.43
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. Allowing the licensee to make the determination as to
whether to use telehealth for the initial visit would be consistent with the discretion to use
telemedicine for assessment and diagnosis, as set forth in Delaware law.44 Moreover, doing so
would allow the practitioner in the best position to weigh access, health, and safety
considerations to decide whether to use telehealth. Under the Board’s regulation, the standards of
care for telehealth initial evaluations would be the same as for in-person initial evaluations.
In at least some situations, dietitians/nutritionists may have enough information about a
patient to make an initial evaluation by telehealth. For example, licensees may receive a patient’s
diagnosis, lab data, and other relevant information from a referring physician. Such a referral is
required for Medicare coverage of medical nutrition therapy services, whether provided in

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person or by telehealth;45 other programs or payors may also require a physician referral.46 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.47 Finally, some sources support the use of self-reported anthropometric
data for certain types of telehealth evaluations by dietitians and nutritionists.48 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 proposed § 9.2.4.1, which would
make the licensee “responsible for determining and documenting that telehealth is an appropriate
level of care.”49
For these reasons, we encourage the Board to consider whether requiring licensed
dietitians/nutritionists to conduct all initial evaluations in person is necessary for patient welfare.
Well-intentioned laws and regulations may impose unnecessary, unintended, or overbroad
restrictions on competition, thereby depriving health care consumers of the benefits of vigorous
competition.50 Thus, we suggest that regulators consider whether a restriction that could limit
entry or access is narrowly tailored to the legitimate goals of the restriction, such as health and
safety, and whether other provisions in the law or regulations already achieve, or could achieve,
such goals through less competitively restrictive means.
Accordingly, FTC staff encourages the Board to consider whether the proposed
regulation could be improved by eliminating the prohibition on the use of telehealth for initial
evaluations and expressly stating that, consistent with Delaware law’s definition of telemedicine,
licensees have the option to use electronic communications for assessment and diagnosis. Health
and safety standards would be maintained by relying on existing standards of care, just as is done
with respect to in-person services. Such a clarification could enhance the availability of safe and
appropriate telehealth-based dietetics/nutrition services, thus potentially increasing competition,
reducing health care prices, and improving quality.
IV. 	Conclusion
The proposed regulation could promote the use of telehealth and enhance competition in
the provision of nutrition services by allowing licensed dietitians/nutritionists to determine
whether telehealth is an appropriate level of care and to provide dietetic and nutrition services
through telehealth. It may, however, unnecessarily limit those benefits by requiring that all initial
evaluations be carried out in person, rather than by telehealth. While supporting the proposed
regulation’s flexibility in generally allowing licensees to determine whether to use telehealth, we
urge the Board to consider whether legitimate health and safety justifications support the
restriction, or whether allowing licensees to decide whether to use telehealth during all phases of
care would better promote competition and access to safe and affordable care.
We appreciate your consideration of FTC staff’s views.

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Respectfully submitted,
Tara Isa Koslov, Acting Director
Office of Policy Planning
Ginger Zhe Jin, Director
Bureau of Economics
Deborah Feinstein, Director
Bureau of Competition
1 This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Economics, and Bureau of Competition. The letter does not necessarily represent the views of the Federal Trade
Commission or of any individual Commissioner. The Commission, however, has voted to authorize staff to submit
these comments.
2 3800 State Board of Dietetics/Nutrition, 19 Del. Reg. Regs. 1075 (proposed June 1, 2016) (Telehealth regulation to
be codified at 24 DEL. ADMIN. CODE § 3800-9) [hereinafter Proposed Regulation].
3 Proposed Regulation, supra note 2, § 3800-9.2.4.4.
4 We refer to “telemedicine” or “telehealth” as those terms are used in Delaware law and in the proposed regulation
that is the subject of this letter. See infra note 23. While both terms “describe the use of medical information
exchanged from one site to another via electronic communications to improve the patient’s health status,” they are
often interchanged. See I NST. OF M ED., N AT ’ L ACAD. OF SCIENCES, T HE ROLE OF T ELEHEALTH IN AN E VOLVING
H EALTH C ARE E NVIRONMENT: W ORKSHOP SUMMARY 3 (2012). Accordingly, we follow the approach of the Institute
of Medicine and do not attempt to regularize the usage of either term. See id.
5 Federal Trade Commission Act, 15 U.S.C. § 45.
6 Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long has been faith
in the value of competition.”).
7 See generally FTC STAFF, O VERVIEW OF FTC ACTIONS IN H EALTH C ARE SERVICES AND P RODUCTS (2016),
https://www.ftc.gov/system/files/attachments/competition-policy-guidance/hcupdaterev.pdf.
8 See, e.g., FTC & U.S. D EP’T OF J USTICE , I MPROVING H EALTH C ARE : A D OSE OF COMPETITION (2004),
http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf.
9 FTC and staff advocacy can include letters or comments addressing specific policy issues, Commission or staff
testimony before legislative or regulatory bodies, amicus briefs, or reports. See, e.g., Comment from FTC Staff to
Valencia Seay, Senator, Ga. State Senate (Jan. 29, 2016),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-georgia-state-senator-valencia-
seay-concerning-georgia-house-bill-684/160201gadentaladvocacy.pdf (regarding removal of direct supervision

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requirements for dental hygienists); Brief of Amicus Curiae FTC in Support of No Party, In re Nexium
(Esomeprazole) Antitrust Litig., No. 15-2005 (1st. Cir. Feb. 12, 2016),
https://www.ftc.gov/system/files/documents/amicus_briefs/re-nexium-esomeprazole-antitrust-
litigation/160212nexiumbrief.pdf; FTC STAFF, P OLICY P ERSPECTIVES: COMPETITION AND THE REGULATION OF
ADVANCED P RACTICE N URSES (2014), https://www.ftc.gov/system/files/documents/advocacy_documents/policy-
perspectives-competition-regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf.
10 Many of these competition advocacy comments have focused on proposed state-level changes to statutes and rules
governing the scope of practice and supervision of advanced practice registered nurses. The FTC staff report, Policy
Perspective: Competition and the Regulation of Advanced Practice Nurses, presents an overview of these comments
and an in depth analysis of the competitive effects of such statutes and rules. See FTC STAFF, P OLICY P ERSPECTIVES,
supra note 9.
11 See FTC & U.S. D EP’T OF J USTICE , supra note 8, ch. 2, at 30 (section on “State Restrictions on the Interstate
Practice of Telemedicine”). More recently, FTC staff held a workshop series, Examining Health Care Competition,
where a panel on Innovations in Health Care Delivery explored competition issues related to telehealth. See
Transcript of Examining Health Care Competition Workshop 67-122, Fed. Trade Comm’n (Mar. 20, 2014),
https://www.ftc.gov/system/files/documents/public_events/200361/transcriptmar20.pdf.
12 FTC & U.S. D EP’ T OF J USTICE , supra note 8, Executive Summary at 23.
13 See Comment from FTC Staff to Steve Thompson, Representative, Alaska State Legislature (Mar. 25, 2016),
https://www.ftc.gov/policy/policy-actions/advocacy-filings/2016/03/ftc-staff-comment-alaska-state-legislature-
regarding (regarding telehealth provisions in Senate Bill 74, which would allow licensed Alaska physicians located
out-of-state to provide telehealth services).
14 See Comment from FTC Staff to the Delaware Board of Occupational Therapy Practice (Aug. 3, 2016),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-delaware-board-occupational-
therapy-concerning-its-proposed-telehealth-regulation/v160014_delaware_ot_proposed_advocacy.pdf (regarding its
proposed telehealth regulation).
15 This advocacy also draws on knowledge acquired during the Innovations in Health Care Delivery panel of the
2014 FTC workshop, Examining Health Care Competition, supra note 11.
16 Under Delaware law, the terms “dietitian” and “nutritionist” are used interchangeably, and the Board issues a
single license, the L.D.N. (licensed dietitian/nutritionist), to such practitioners. See D EL. CODE ANN. tit. 24, § 3802
(4), (6).
17 See 80 Del. Laws, c. 80 (2015-16) (Chapter 80, formerly H.B. 69, as amended by House Amendment No. 1, An
Act to Amend Title 18 and 24 of the Delaware Code Relating to Telemedicine Services (July 7, 2015)),
http://delcode.delaware.gov/sessionlaws/ga148/chp080.shtml#TopOfPage (Section 19 amended the
Dietitian/Nutritionist Licensure Act, D EL. C ODE ANN. tit. 24, § 3802).
18 The 2015 law added telehealth and telemedicine provisions to the practice acts of at least 19 types of health
professionals. See 80 Del. Laws, c. 80 (2015-16).
19 See Committee Report: H.B. 69, D EL. STATE LEGISLATURE , COMM . O N E CONOMIC
D EVELOPMENT/B ANKING/I NSURANCE /COMMERCE (April 1, 2015),
http://legis.delaware.gov/LIS/lis148.nsf/d81ce478bd9ae572852568730079e2fe/df26340ba3dd31eb85257e1a0074c4
75?OpenDocument.
20 See D EL. CODE ANN. tit. 24, § 3802 (2), (5), (9), (10), (12), (13). The law’s definition of telehealth provides for
the use of electronic communications to “support clinical health care, provider consultation, patient and professional
health-related education, public health, health administration, and other services as described in regulation.” Id. §
3802 (12). It defines telemedicine as a “form of telehealth” in which licensees use electronic communications to
provide or support clinical care. See id. § 3802 (13).
21 See id. § 3802 (13) (“‘Telemedicine’ means a form of telehealth which is the delivery of clinical health-care
services by means of real time 2-way audio, visual, or other telecommunications or electronic communications,

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including the application of secure video conferencing or store and forward transfer technology to provide or
support health-care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, care
management and self-management of a patient’s health care by a licensee practicing within his or her scope of
practice as would be practiced in-person with a patient and with other restrictions as defined in regulation.”).
22 Id.
23 Proposed Regulation, supra note 2, § 3800-9.1 (“Telehealth is the use of electronic communications to provide
and deliver a host of health-related information and health-care services, including dietetics and nutrition-related
information and services, over large and small distances. Telehealth encompasses a variety of health care and health
promotion activities by, including education, advice, reminders, interventions, and monitoring of interventions.”).
Unlike Delaware law, the proposed telehealth regulation does not refer to clinical care or telemedicine (which
Delaware law defines as a form of telehealth). See D EL. C ODE ANN. tit. 24, § 3802 (13) However, the regulation’s
references to health-care services, interventions, and evaluations indicate that it covers the delivery of clinical
services generally characterized as telemedicine. See Proposed Regulation, supra note 2, §§ 3800-9.1, 9.2.4.4. To
make it clear that the regulation covers such services, we suggest that the Board consider revising the proposed
regulation to expressly cover clinical care and telemedicine in a manner consistent with the provisions in Delaware
statutory law.
24 See Proposed Regulation, supra note 2, § 3800-9.2.4.2 (“The licensee shall comply with the Board’s law and rules
and regulations and all current standards of care requirements applicable to onsite care.”).
25 Id. § 9.2.4.1.
26 Id. § 9.2.4.4.
27 See supra note 21 and accompanying text.
28 See, e.g., Comment from FTC Staff to Steve Thompson, supra note 13.
29 See, e.g., Megan E. Rolio et al., Video Consultations and Virtual Nutrition Care for Weight Management, 115 J.
ACAD. N UTR . & D IETETICS 1213 (2015) (virtual nutrition services “have the potential to extend the reach of
dietetics-related services” and overcome barriers arising from cost restrictions and logistical constraints).
30 See, e.g., Delaware Division of Public Health, State Office of Primary Care, Delaware Primary Care Health Needs
Assessment 2015 (Feb. 2016), at 60, www.dhss.delaware.gov/dph/hsm/files/depchealthneedsassessment2015.pdf
(“The use of telehealth in Delaware is supported by state government as an important cost-effective, access
improvement tool.”).
31 See generally Rashid L. Bashshur et al., The Empirical Foundations of Telemedicine Interventions for Chronic
Disease Management, 20 T ELEMED. & E -H EALTH 769, 770 (2014) (“Differences in access to care reflect economic,
geographic, and functional as well as social, cultural, and psychological factors . . . . many residents of the inner city
have limited access to medical resources for economic reasons.”); Am. Acad. of Pediatrics, Policy Statement: The
Use of Telemedicine to Address Access and Physician Workforce Shortages, 136 P EDIATRICS 202, 203 (2015)
(urban as well as rural children “face significant disparities in access and time-distance barriers, which could be
partly alleviated by the use of telehealth”); Hilary Daniel & Lois Snyder Sulmasy, Policy Recommendations to
Guide the Use of Telemedicine in Primary Care Settings: An American College of Physicians Position Paper, 163
ANN. I NT. M ED. 787, app. (2015) (“Limited access to care is not an issue specific to rural communities; underserved
patients in urban areas have the same risks as rural patients if they lack primary or specialty care . . . .”).
32 See D IV. OF SERVS. FOR A GING & A DULTS WITH P HYSICAL D ISABILITIES, D EL. H EALTH & SOC . SERVS.,
D ELAWARE STATE P LAN ON A GING: O CTOBER 1, 2012 TO SEPTEMBER 30, 2016 (2012),
www.dhss.delaware.gov/dsaapd/files/state_plan_on_aging_12_15.pdf (telehealth services will improve the lives of
older persons and persons with disabilities “by allowing persons to receive some medical care at home, or in other
more convenient settings”).
33 See Press Release, Delaware Health and Social Services & Office of Governor Markell, Delaware Medicaid
Program to Reimburse for Telemedicine-Delivered Services Beginning July 1 (June 27, 2012),
http://news.delaware.gov/2012/06/27/delaware-medicaid-program/. (“Telemedicine will improve access to

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information and medical care,” and lead “to better health outcomes for patients and reduced costs for
hospitalizations and transportation.” (quoting Gov. Jack Markell)).
34 States that receive federal Medicaid funds are required to ensure transportation for Medicaid beneficiaries to and
from medical appointments. See 42 C.F.R. § 431.53. The Delaware Medicaid & Medical Assistance Program pays
for nonemergency transportation to covered services. See Medical Transportation, STATE OF D EL.,
http://www.dhss.delaware.gov/dhss/dmma/medical.html (last updated June 2, 2016).
35 See, e.g., Rolio et al., supra note 29, at 1213 (“A number of studies have demonstrated the utility of video
consultations for the delivery of nutrition care either alone or as part of a multi-disciplinary team for chronic kidney
disease, diabetes, weight management, and home parenteral nutrition . . . .”). Licensed Delaware
dietitians/nutritionists assess individuals’ specific nutritional needs and provide dietetic and nutrition therapy,
including services such as counseling, education, medically prescribed diets, tube feedings, and specialized
intravenous solutions. See D EL. CODE ANN. tit. 24, § 3802(2).
36 See Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, Pub. L. No. 106-554,
Dec. 21, 2000, Tit. 1, Subtit. A, § 105(d), 114 Stat. 2763A-472 (codified at 42 U.S.C. § 1395u(b)(18)(C)). Medicare
pays for telehealth services provided by a physician or a practitioner described in 42 U.S.C. § 1395u(b)(18)(C)). See
42 U.S.C. § 1395m(m)(1).
37 Medical nutrition therapy services are not on the statutory list of Medicare-covered telehealth services. See 42
U.S.C. § 1395m(m)(4)(F). However, regulatory changes expanded the list of covered services to include individual
medical nutrition therapy in 2006, and group medical nutrition services in 2011. See 42 C.F.R. § 410.78(b) (2006);
42 C.F.R. § 410.78(b) (2011). See also Matlin Gilman & Jeff Stensland, Telehealth and Medicare: Payment Policy,
Current Use, and Prospects for Growth 3 M EDICARE & M EDICAID RES. REV. E1, E6, E7 (2013) (describing the
expansion of Medicare-covered telehealth services).
38 See, e.g., Dave Overson, Nutrition Done Right from Afar at NMVAHCS, N.M. VA H EALTH C ARE SYS. (Sept. 28,
2015) (discussing a telenutrition program “that is improving the lives of countless New Mexico Veterans.”); C AL.
AREA O FFICE , I NDIAN H EALTH SERV., T ELENUTRITION G UIDELINES FOR C ALIFORNIA T RIBAL AND U RBAN I NDIAN
H EALTHCARE P ROGRAMS 1 (2012), https://www.ihs.gov/california/tasks/sites/default/assets/File/HPDP-
CAO_TeleNutrition_Guidelines.pdf (“As with other telehealth services, telenutrition can provide access and
convenience of clinical services to communities unable to locally obtain these services. Telenutrition can help
reduce travel, stress, and costs for patients and their family.”); Press Release, supra note 33.
39 See supra notes 24 and 25 and accompanying text.
40 See supra note 26 and accompanying text.
41 Although we take no position on the telemedicine policies of the Federation of State Medical Boards (“FSMB”)
and the American College of Physicians (“ACP”), we note that under both policies, a physician-patient relationship
can be established during a telemedicine encounter. See FED’N OF S TATE M ED. B DS., M ODEL P OLICY FOR THE
APPROPRIATE U SE OF T ELEMEDICINE T ECHNOLOGIES IN THE P RACTICE OF M EDICINE 5 (2014),
https://www.fsmb.org/Media/Default/PDF/FSMB/Advocacy/FSMB_Telemedicine_Policy.pdf (the physician-patient
relationship to “be established using telemedicine technologies so long as the standard of care is met.”); Daniel &
Sulmasy, supra note 31, at 787-88, App. (ACP takes the position that “a telemedicine encounter itself can establish a
patient-physician relationship,” so long as the physician meets “the standard of care required for an in-person visit”).
Occupational therapy organizations and practitioners have taken similar positions, concluding that telehealth may be
used throughout the course of care – including for evaluation, intervention, and monitoring – when practitioners are
held to existing professional standards of care. See Comment from FTC Staff to the Delaware Board of
Occupational Therapy Practice, supra note 14, at note 38.
42 See Comment from FTC Staff to Steve Thompson, supra note 13.
43 See, e.g., id. (describing the 2014 adoption by the Alaska State Legislature of a law allowing in-state Alaska
licensed physicians to provide telehealth services without an in-person physical examination, and advocating the
adoption of provisions in Senate Bill 74 that would allow out-of-state physicians to provide telehealth services in the
same manner ); Bill History/Action for 29th Legislature: SB 74, A LASKA S TATE LEGISLATURE ,

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http://www.akleg.gov/basis/get_bill.asp?session=29&bill=sb++74 (last updated July 15, 2016) (noting adoption of
Alaska SB 74, which eliminated an in-person physical examination requirement for Alaska licensed physicians
located out of state); FTC Staff Comment to the Delaware Board of Occupational Therapy Practice, supra note 14,
at note 22 (in-person evaluation requirement in the 2015 version of a proposed regulation was eliminated); Ala.
State Bd. of Med. Examiners, Certification of Emergency Rules: Emergency Repeal of Chapter 540-X-15 (Aug. 25,
2015), http://www.albme.org/Documents/Rules/Temp/540-X-15ER%20repealed.pdf (repeal of telemedicine rules
requiring an in-person physical examination or a telehealth evaluation with the patient at an established medical site
in light of their potential antitrust implications).
44 See supra note 21 and accompanying text.
45 See 42 U.S.C. § 1395x(vv)(1). We express no opinion on whether a referral should be required for nutrition
services; rather, we note that pursuant to a referral, dietitians/nutritionists may receive health information obviating
any need for an in-person evaluation that might otherwise exist.
46 See, e.g., Referring Patients to an RDN, ACAD. OF N UTRITION & D IETETICS,
http://www.eatrightpro.org/resource/about-us/what-is-an-rdn-and-dtr/work-with-an-rdn-or-dtr/referring-patients-to-
an-rdn (discussing referral requirements in Medicare, private insurance, and state law).
47 See 16 D EL. ADMIN. CODE § 3201-6.5.3 (2016) (Nutritional assessments at skilled and intermediate care nursing
facilities).
48 See Rolio et al., supra note 29, at 1213, 1218, 1220 (describing techniques for the collection, evaluation, and
interpretation of information in a virtual nutrition assessment).
49 Proposed Regulation, supra note 2, § 3800-9.2.4.1.
50 See FTC STAFF, P OLICY P ERSPECTIVES, supra note 9. See also T HE W HITE H OUSE , O CCUPATIONAL L ICENSING: A
FRAMEWORK FOR P OLICYMAKERS 30 (2015),
https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf (excessively stringent
restrictions on the services that a practitioner can provide may limit the supply of labor, restrict competition, restrict
access to services, and increase the price of services).