Post-Pandemic Telehealth: Shrinking Pandemic Flexibilities May Catch Practitioners Off Guard

The COVID-19 federal Public Health Emergency (PHE) expires on May 11, 2023. During the PHE, the federal government provided regulatory flexibility to allow patient treatment to continue despite lockdowns, closures, and COVID hot spots. The emergency declarations and legislative actions that were enacted during the PHE eased some of the telehealth restrictions that had previously curbed use. During the PHE, these flexibilities allowed practitioners to, among other things, prescribe controlled substances without an in-person visit and use alternate forms of remote communication during telehealth encounters.
 
In addition to federal flexibilities, states declared their own PHEs and granted flexibilities. Specifically, state waivers allowed practitioners to practice telehealth across state lines. However, according to the Federation of State Medical Boards (FSMB), very few states continue to have waivers in place.

Licensure and Coverage Considerations

While telehealth use during the pandemic afforded patients unprecedented access to medical care, it blurred the lines regarding practitioner licensure requirements. According to the FSMB, “A physician must be licensed, or appropriately authorized, by the medical board of the state where the patient is located. The practice of medicine occurs where the patient is located at the time telemedicine technologies are used. Physicians who diagnose, treat, or prescribe using online service sites are engaging in the practice [of] medicine and must possess appropriate licensure in all jurisdictions where their patients receive care.” Depending on the states where your patients are located, licensure requirements of multiple states may apply. 
 
In general, medical professional liability coverage requires proper licensure in the states where providers are practicing medicine. If a provider practices medicine in a state where they are unlicensed, coverage issues may arise. It is up to the practitioner to comply with all state licensing rules and regulations. 

Licensure Exceptions

According to the FSMB, the exceptions that may permit the practice of medicine across state lines are:

• Prospective patient screening for complex referrals when determining if the practitioner will agree to diagnose and treat a patient who will travel to a different state to receive care, such as when a patient travels out of state to receive care at a Center for Excellence.
• Follow-up after travel for surgical/medical treatment “if the follow-up can be effectively provided virtually.”
• Episodic follow-up care when there is an established relationship, the patient is temporarily located outside the physician’s jurisdiction, and if the practitioner can “gather sufficient clinical information during the evaluation to provide care that meets the accepted standard of care.”

Risk Recommendations 

Telehealth is here to stay, but many of the flexibilities afforded by the federal PHE will disappear with its expiration. Consider the following when reviewing your telehealth policies:

• Keep abreast of changes in federal and state laws when prescribing controlled substances. During the PHE, the Drug Enforcement Administration (DEA) removed the requirement for an in-person visit prior to prescribing controlled substances virtually. These flexibilities were set to expire on May 11, 2023 along with the end of the PHE. However, on May 3, 2023 the DEA temporarily extended PHE flexibilities allowing practitioners to continue prescribing controlled substances virtually in order to allow time to seek ways to provide access to needed medication with appropriate safeguards. As the DEA completes its review of telehealth prescribing rules, the current flexibilities will likely change so it is important to monitor relevant news sources for updates to be sure your practice is in compliance with state and federal regulations.
• Use HIPAA-compliant telehealth technology. During the PHE, the U.S. Department of Health and Human Services Office for Civil Rights (OCR) allowed practitioners to utilize any nonpublic-facing remote communication product, even if it didn’t fully comply with HIPAA requirements. OCR recently announced a 90-day transition period to come into compliance with HIPAA telehealth rules. That transition period expires on August 9, 2023. After that date, use a HIPAA-compliant telehealth vendor and ensure that appropriate business associate agreements are in place. For additional information, including technology options and tips on finding a telehealth vendor, see Telehealth.hhs.gov.
• Know state licensure regulations specific to the patient’s location. Recognize that every state has their own set of regulations. Telehealth.hhs.gov provides an overview on licensing across state lines and how states are trying to make it easier to practice telehealth across state lines, including licensure by endorsement and mutual agreement and telehealth-specific license and registration. The Center for Connected Health Policy (CCHP) maintains the latest requirements for cross-state licensing. 
• Consider the Interstate Medical Licensure Compact (IMLC). The IMLC, referred to as the Compact, offers a streamlined licensure process for physicians who want to practice medicine in multiple states. The Compact currently includes 37 states, the District of Columbia, and the territory of Guam. Physicians must meet eligibility requirements and apply for licensure through the Compact. 
• Verify state licensure during the credentialing and privileging process at initial appointment and reappointment. Ensure telehealth practitioners have appropriate licensure in those states where they practice telehealth. 
• Be cautious when utilizing a licensure exception to practice interstate telehealth. When treating out-of-state patients who will return home for follow-up care, ensure these patients have backup plans to receive care locally. When providing episodic follow-up care to a patient who is temporarily in another state, direct the patient to obtain local care when a telehealth visit is inappropriate. Screening criteria is valuable when making this decision. If a patient permanently moves to another state, make sure the patient has a plan to transition care to a practitioner licensed in the patient’s new state.
• Develop screening criteria to determine patient eligibility for a telehealth versus an in-person visit. Identify pertinent clinical and patient factors when considering the appropriateness of a telehealth visit. Screening criteria should take into account your ability to accommodate patients with limited English proficiency and with disabilities including vision and hearing impairment in the context of a telehealth visit. Ensure that staff members scheduling patient appointments are trained to use screening criteria to determine whether a virtual or in-person appointment is required. Inform patients of the visit types that are appropriate for telehealth. 
• Consult an attorney to ensure compliance with evolving and varying state and federal telemedicine laws and licensing requirements. 

Federal and state flexibilities granted during the PHE caused an explosion in telehealth. Now that the PHE is formally ending, practitioners need to be prepared to practice telehealth in an environment with shrinking flexibilities.

Copyrighted. No legal or medical advice intended. This post includes general risk management guidelines. Such materials are for informational purposes only and may not reflect the most current legal or medical developments. These informational materials are not intended, and must not be taken, as legal or medical advice on any particular set of facts or circumstances.