Licensure Complexities Related to Using Telehealth Across State Lines

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Two new reports have recently been released discussing states with licensure exemptions or registration processes specific to the use of telehealth by out-of-state providers. One report, titled, In 30 states you can’t use telehealth with out-of-state doctors, was released by the Pacific Legal Foundation (PLF), which also is the organization that filed the lawsuit alleging New Jersey’s licensure laws are unconstitutional which CCHP discussed in detail within its January 23rd Newsletter. Additionally, a second report, issued by the Cicero Institute titled, The third annual telehealth innovation report, highlights 27 states that have barriers to cross-state-line telehealth. The discrepancies between the two reports are largely based on different definitions and interpretations of existing laws, demonstrating how confusing navigating telehealth across state lines can be for both providers and patients. In addition, the differences present the importance of reviewing each law directly in order to truly understand what the policies both require and allow in the various circumstances that arise in terms of virtual medical care.

 

The PLF article acknowledges that while 30 states do not have general out-of-state provider telehealth allowances, there are limited exceptions in those states that still may apply to certain situations. For example, Alabama has an exception from in-state licensure for “irregular or infrequent” visits, and Alaska, Illinois, and Washington allow exceptions if the provider already has an established relationship with the patient. Utilizing information tracked for each state in CCHP’s Policy Finder, we find that 24 states have some kind of licensure exception – though the exceptions vary widely and often are limited. Additionally, 17 jurisdictions have telehealth registration processes, or something similar, in place – although they sometimes only apply to certain providers. Some states have both licensure exceptions and registration processes, including Arizona, Delaware, Florida, and Oregon. According to CCHP’s Policy Finder, 12 jurisdictions do not currently have specific licensure exceptions or telehealth registration processes, however 9 of those jurisdictions are members of various licensure compacts, which technically also offer another route for out-of-state providers to address the licensure issue.

 

The Cicero report covers a variety of issues outside of licensure that may complicate and limit the use of telehealth. For instance, whether state laws are modality neutral and allow for the use of technology broadly, including audio-only and store-and-forward modalities. In addition, the report assessed laws that may limit the ability to establish a provider-patient relationship via certain types of technology. While the report found licensure to be the main policy area with barriers, providers should be aware that practicing across state lines via telehealth requires providers to abide by all state laws where the patient is located, including those that may place limitations on the modalities used (as well as federal laws such as those related to prescribing controlled substances) or require consent before telehealth is used.

 

The major takeaway from both reports is that it is indeed complex to navigate and apply each state’s requirements to the provision of care via telehealth across state lines. As pointed out in the PLF article, the “simplest” way for providers to ensure they can provide care in all instances is getting licensed in all states, however that is not feasible for most. The article states the upfront costs would be more than $90,000, not to mention the annual renewal fees would be over $11,000. Therefore, the providers best able to navigate such requirements are larger corporate providers, not individual providers, especially those that may have specific expertise needed by patients with specialty care needs. Both the PLF article and Cicero Institute report seem to favor states instituting a process for interstate telehealth registration in order to address licensure limitations to telehealth. Nevertheless, most state telehealth registration processes still require upfront costs and fees in order to receive board approval. At this point, more states seem to be willing to pass limited exceptions or enter into licensure compacts as a way of addressing the licensure issue. A recent JAMA Network article also discussed advantages of licensure exceptions to increase telehealth access, though they may be limited and difficult for providers to be aware of and comply with. The article discusses the potential of adopting uniform exception language across states, which has been developed by various groups, however that would require coordination by states.

 

In some cases, it is possible that the laws haven’t been updated to accommodate telehealth and address these instances directly. There have been many new laws and exceptions passed since the pandemic highlighted licensure barriers though, and there are likely many more to come as well – especially pending the outcome of the aforementioned lawsuit challenging New Jersey’s licensing laws. Another new study in JAMA Network Open reveals how utilization of out of state telemedicine surged during the COVID-19 emergency in light of the licensing waivers (though the extent of waivers varied by state). However, once the waivers expired instead of switching to in-person care, patients tended to simply stop seeing their physician altogether. This phenomenon raises concerns for patient continuity of care and demonstrates how changes in policy can have significant impacts on both providers and patients.

 

For more information on the PLF report, please review the article discussing state telehealth rules, and the Cicero Institute report can be viewed on their website. To review all laws and policies impacting telehealth by state, and federally, please access CCHP’s Policy Finder.
With funding from the National Association of Community Health Centers (NACHC), CCHP has created a separate section on its policy finder that lists the Medicaid fee-for-services policies on telehealth as they relate to the FQHCs.   Check out CCHP’s FQHC policy finder to view the policies that exist in YOUR state!

CCHP knows that telehealth policy can be a complicated subject and from time to time questions about policies related to your specific situation may arise. You’re in luck…We’re here for you!  Just submit your question via our easy to use contact us form, or send an email to info@cchpca.org

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