Inconsistency in Telehealth Regulations Continues to be a Hang up

A major issue is the crossing of state lines via Telehealth.

The COVID-19  pandemic inevitably highlighted the ways in which we now define the doctor-patient relationship, and what healthcare looks like now into the third year of the public health emergency (PHE).

Physicians had to remain connected with their patients in new ways, and thanks to state and federal governments rewriting or should we say, opening up telehealth regulations, via the CARES Act in 2020 and the 1135 waivers, patients were able to access providers from the comfort of their homes, from all over the country.

While there are a plethora of benefits telehealth has created in a pandemic world, some states are or have rolled back regulations around telehealth licensing and requirements. I have received many inquiries over the past year, related to whether or not a provider is allowed to offer services beyond state lines.

Unfortunately, due to federal and state laws, there is not a “yes” or “no” answer or a one-size-fits-all solution. The one consistent thing we can say is that the pandemic changed things significantly.

Each State is Different

First, it is important to realize that what the federal government says is allowed, doesn’t necessarily mean it is allowed at a state level. At the end of 2020, and as of summer 2021, many states, rolled back many of the telehealth pandemic workarounds. Because these laws were issued under state emergency declarations, they were never meant to be permanent.

This means that updated legislation should be and needs to be communicated to patients. An article published in the Atlanta Journal Constitution in September of 2021, explained how Johns Hopkins Medicine in Baltimore, recently scrambled to notify more than 1,000 Virginia patients that their telehealth appointments were ‘no longer feasible,’ as a given under state mandates. Virginia’s emergency order has been rolled back.

Although the demand for telehealth services is still at a good pace, the state-by-state licensing requirements complicate physician’s abilities to provide care beyond state borders.

Some patients also have moved recently, and since they moved, they are still wanting to “see” the same provider. It’s important to note that the law does not change during these circumstances. If you are not licensed in the state the patient now resides, or is partially residing in; think our snowbirds, and that state has rolled back their Telehealth legislations, you cannot continue the same patient/provider relationship.

Another example in Florida, where Expiration of Emergency Order 20-002 and Emergency Order 20-003 related to COVID-19 expired on June 26, 2021. The expiration of these orders impacts the following services that were temporarily authorized in the state of Florida:

• Out-of-state health care practitioners are no longer authorized to render services for patients in Florida unless they become licensed to practice in Florida, except as specified in the HHS Guidance Memorandum Dated 3/12/2021, regarding vaccine administration.

• Out-of-state health care practitioners are no longer authorized to perform telehealth services for patients in Florida unless they become licensed or registered in Florida.

• Qualified physicians are required to conduct an in-person physical examination to issue a physician certification for any patient.

• Controlled substance prescribers are required to conduct an in-person physical examination to issue a renewal prescription for a controlled substance.

The Centers for Medicare & Medicaid Services (CMS) published more guidance on this topic of state-to-state telehealth in an April 7, 2022 memorandum that stated:

“an 1135 waiver, when granted by CMS, does not have the effect of waiving State or local licensure requirements or any requirement specified by the State or a local government as a condition for waiving its licensure requirements. Those requirements would continue to apply unless waived by the State. Therefore, in order for the physician or non-physician practitioner to avail him or herself of the 1135 waiver under the conditions described above, the State also would have to waive its licensure requirements, either individually or categorically, for the type of practice for which the physician or non-physician practitioner is licensed in his or her home State.“

Many practices made assumptions that if CMS and Medicare said you can do it, that this was a blanket waiver for all states and all payers. Not true.

State licensing basics

State medical boards oversee a myriad of moving parts to ensure patient safety and provider reliability and integrity. While these systems are in place for specific reasons, they vary by state. It must be considered that additional licenses in out-of-state territories may require application fees and adhering to certain continuing education programs.

Telehealth makes more options available

The benefits of telehealth and telemedicine are very clear. For many, going to a doctor’s appointment is not easy. People have transportation issues, disabilities, or perhaps live in rural areas or challenges to access in certain areas, and so these will be huge considerations for lawmakers in telehealth legislation moving forward

Current outlook and into 2023

The value of telehealth and telemedicine expands the breadth of healthcare access. Lawmakers are hard at work trying to make healthcare more accessible for Americans. This past June, The Protecting Telehealth Access Act was introduced in the Senate in 2021, in order to expand telehealth access and advocate for this coverage beyond the COVID-19 pandemic.

However, there are still hurdles as it relates to equitable access – all patients having necessary broadband and high speed internet to access telehealth, and a standard of care in regards to what is an appropriate use of telehealth. Until this can be agreed on and solidified, the permanency of telehealth across the States is still in a holding pattern.

To find out where your state currently stands go to: https://www.cchpca.org/topic/cross-state-licensing-professional-requirements/

References:

Telehealth Advocates Try to Bring Congress’ Attention Back to Long-Term Policy (mhealthintelligence.com)

https://www.cchpca.org/2022/11/2022-Leg-Roundup-All-States.pdf