COVID-19 Drives States to Relax Telehealth Restrictions

Health and Human Services Secretary Alex Azar urged governors to reduce telehealth restrictions. At the top of Azar’s Tuesday memo for immediate action: States should immediately allow licensed health professionals to practice across state lines. “Your help is needed to ensure health professionals maximize their scopes of practice and are able to travel across state lines or provide telemedicine to communities where they are needed most,” it said. An HHS spokesperson emailed Wednesday that "these kinds of state-level actions can enable healthcare providers on the frontlines to make maximum use of the flexibilities being provided in Medicare and Medicaid reimbursement through the Secretary’s January 31 declaration of a Public Health Emergency and the President’s March 13 declaration of a National Emergency."

“Many states will need to take swift action to ensure that the providers in their states are ready and able to provide telemedicine in a manner that best addresses COVID-19,” National Governors Association Executive Director Bill McBride wrote governors Friday. “States may use a variety of vehicles to achieve this goal depending on existing authorities and flexibilities ... to limit unnecessary interactions and reduce the number of new infections.” States took immediate action like “increasing the types of reimbursable covered services, reducing consumer costs, reducing participation requirements and barriers for providers, and increasing the modalities through which services may be offered via telehealth,” McBride wrote.

States previously showed “strong appetite” for telehealth, but “this general support ... often lacked key foundational elements such as regulatory infrastructure, license streamlining, guidance on permitted shareholders in corporate practice of medicine states, and most importantly, reimbursement mandates,” said Epstein Becker's Kathleen Premo. Differences in laws and rules are the largest barrier to telehealth startups, said Elizabeth Scarola, another healthcare attorney with the firm. “Without one uniform licensing regime, it has been difficult for one single company to quickly operationalize.”

Red Tape

Policies that would be most helpful right away include allowing compensation for all telehealth -- including live video, mobile health, remote patient monitoring and store-and-forward -- and taking away restrictions preventing patients from accessing telehealth at home, Kwong said. “A lot of states did not have all those in play.” If people must self-quarantine or shelter in place, they shouldn’t be required to leave to use telehealth, said the CCHP official. Remote monitoring can minimize healthcare worker exposure, she added.

No state says telehealth is illegal, but costs can be prohibitive if not covered by Medicaid or private insurance, Kwong said. One thing that has kept healthcare providers from embracing telehealth is that they may not be compensated unless patients themselves pay, she said. Pennsylvania has a narrow policy that reimburses for live video only for mental behavior health services, she noted. Kwong praised California for last year expanding what's covered.

Crossing state lines with telehealth remains a barrier despite Congress granting HHS power to waive telehealth restrictions during a national emergency, some said.

Interstate telehealth allows physicians in less-affected areas to help elsewhere, Premo said. “Most populous areas have adequate provider coverage for health needs during ordinary times. Certain underserved areas struggle with provider coverage at the best of times. During times of extreme utilization, such as pandemic hot zones, the care delivery system will be stretched beyond capacity.”

While HHS' waiver “addresses the issue of out-of-state practitioners being able to provide services to patients in states where they are not licensed, states have been slow to open the door,” Pepper Hamilton lawyers wrote Tuesday. The waiver “requires those practicing across state lines to hold an equivalent license from another state, but state law still controls in this area.”

Early Actions

States are taking temporary actions, including to allow patients to call from home and to ease licensure restrictions preventing telehealth between states, Kwong said: States should consider making such changes permanent. CCHP's website lists state telehealth responses to COVID-19.

“Many states moved quickly to relax professional licensure requirements for healthcare providers,” including California, Colorado, Delaware, Indiana and Florida, said Premo. Georgia, New Jersey and others are allowing out-of-state practitioners to apply for temporary, expedited licenses, she said. Indiana suspended Medicaid face-to-face requirements and Texas allowed phone consultations to establish the physician-patient relationship that’s a prerequisite to telehealth, she said. Telemedicine reimbursement, historically “limited and unpredictable,” is under review on state, national and health plan levels, she said. Premo voiced optimism “that many of the changes will be permanently incorporated into the telemedicine regulatory framework.”

Many states “are expanding telehealth in their Medicaid programs” and “waiving licensing restrictions on telehealth services that cross state lines,” Barley Snyder attorney Christopher Churchill blogged Tuesday. Burr attorneys blogged Friday that the list of states temporarily easing licensing requirements “will likely continue to grow in the coming days.”

Illinois Gov. J.B. Pritzker (D) temporarily expanded telehealth services by executive order “to include all health care, psychiatry, mental health treatment, substance use disorder treatment, and related services provided to a patient regardless of the patient’s location via electronic or telephonic methods including, for example, FaceTime, Facebook Messenger, Google Hangouts, or Skype,” Akerman health lawyers blogged. Only Illinois providers may provide the services, they said. Georgia’s medical board is allowing electronic prescribing and said it will issue emergency practice permits for telemedicine to previously unlicensed physicians and other medical practitioners during COVID-19, but other requirements remain unchanged, including that all treatment must be done by Georgia-licensed practitioners, the lawyers wrote.

“Through the expansion of telehealth services as well as the waiving of licensure requirements for out-of-state professionals, we will be able to accept assistance from both in-state and from out-of-state more easily,” New Jersey Gov. Phil Murphy (D) said last week after signing two telehealth bills. Alaska, Maine and Minnesota lawmakers recently proposed or enacted emergency telehealth laws.