Law360 (April 2, 2020, 3:18 PM EDT) --
As the COVID-19 crises forges ahead, U.S. Secretary of Health and Human Services Alex Azar and the National Governors Association are urging governors to extend the capacity of their health care forces to address the pandemic by waiving state rules that hamper the use of telemedicine. Below is a summary of the current regulatory environment that illustrates how states can facilitate greater access to care by loosening licensing and other restrictions to complement changes recently passed by Congress and implemented by the U.S. Department of Health and Human Services.
As of March 21, based on a review of emergency orders and existing state laws governing telemedicine, significant gaps in the telemedicine legal framework applicable to out-of-state physicians remained. Although public and private payers have created additional clarity regarding the ability to furnish and receive payment for telemedicine services, physicians desiring to work in jurisdictions in which they are not presently licensed are subject to a variety of inconsistent requirements.
Our research of all 50 states assessed whether an out-of-state physician can furnish telemedicine services including prescribing of controlled substances in the state without state-specific licensure due to the COVID emergency.
The following specific issues were considered in connection with this overall question:
- Are out-of-state physicians required to obtain state-specific license before furnishing telemedicine in the state?
- Can out-of-state physicians furnish telemedicine services to patients with whom the physicians lack a preexisting physician-patient relationship?
- Can out-of-state physicians prescribe controlled substances in the state using telemedicine?
Research reveals that only a few states provide clarity on these issues — meaning that emergency orders and/or existing state law permit telemedicine by out-of-state physicians. Note that in many of these states, out-of-state practitioners may still be required to comply with notice or other requirements before commencing telemedicine services in the jurisdiction. Even these barriers can lead to significant delays in treatment.
The regulatory environment in the vast majority of states remains unclear or clearly hostile to telemedicine services by out-of-state physicians —even amid the current public health emergency.
In the majority of states, emergency orders and/or existing state law may facilitate some out-of-state physician delivery of telemedicine services, but gaps and/or uncertainties in the public record exist such that a definitive conclusion on all three issues is not clear at this time. Lack of clarity in any of these three areas limits the effective use of telemedicine at a time when federal and state governments are taking sweeping actions to promote social distancing to flatten the curve of the COVID-19 virus.
By illustration, many state emergency orders authorize the waiver or suspension of select state laws — such as those governing provider licensure, requirements for in-person visits before telemedicine can be used, and/or restrictions on the prescription of controlled substances through telemedicine. In many such states, while the authority to waive or suspend a law has been granted, as of the review date the applicable state agency has not clearly addressed the issue.
Importantly, the Centers for Medicare & Medicaid Services has waived various telemedicine-related requirements through its series of Section 1135 waivers, thereby permitting payment for services. However, the waiver applies only to Medicare, Medicaid and Children's Health Insurance Program requirements, and CMS has clarified that Section 1135 waivers do not waive or preempt state licensure or other requirements applicable to telemedicine services.
Unfortunately, the research suggests that most state laws still do not facilitate the expanded use of telemedicine — even though payers are willing to provide greater flexibility in paying for such services. As a result, out-of-state physicians seeking to help during the COVID-19 emergency through the use of telemedicine will need to closely assess their compliance risk in each state in consultation with counsel.
States could resolve the lack of clarity related to telemedicine services through clear, declarative statements by appropriate state officials. Examples include:
- New/amended emergency orders issued by state governors waiving licensing restrictions for out-of-state practitioners and other scope of practice rules that restrict the wide adoption and use of telemedicine. These waivers should address the ability to perform visits via available modalities (for example voice phone only, where applicable based on the practitioner’s discretion), waive/suspend the need for initial in-person visits, clearly permit prescriptions for controlled/noncontrolled substances to treat any conditions via telehealth, and apply to both new and existing patients.
- In states where flexibility to suspend existing or issue new rules due to recent emergency orders, governors and other stakeholders could direct medical boards and other applicable regulatory bodies to act swiftly take such actions to ease burden on the expansion of telehealth. Broad suspensions of existing rules could address current barriers related to licensure and other requirements under existing laws, including state-specific requirements and nuances to an expanded use of telehealth (that many states have heretofore missed in their emergency actions).
- Given the pressing nature of the COVID-19 emergency, the Interstate Medical Licensure Compact Commission, which oversees the Interstate Medical Licensure Compact, adopted at least 29 states may help the field by publishing standardized supportive tools such as a short form application or notice document similar to the approach taken by Texas.
The adoption of a standard model or approach by all states would greatly speed up the deployment of telehealth and avoid confusion given the patchwork of currently existing requirements and guidance.
Bruce Johnson is a shareholder, Lidia Niecko-Najjum is an associate, and Cybil Roehrenbeck and Kyle Vasquez are shareholders at Polsinelli PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 The results of the 50-state survey reflecting the environment as of March 21 are reflected on an interactive map.
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