How a hodgepodge of federal and state telehealth waivers creates compliance concerns for providers practicing across state lines.
In response to the devastating COVID-19 pandemic in 2020, the federal government and state governments took a number of overlapping actions to promote telehealth as an alternative method for effectively delivering patient care while lowering risk of transmission – passing laws, updating regulations, issuing waivers and executive and agency orders, and releasing sub-regulatory guidance. Insurance companies and providers took corresponding steps to embrace telehealth, standing up new telehealth platforms and processes almost overnight. The result was a significant expansion of telehealth services, programs, and technologies that enabled patients to access critical care from the comfort of their homes, reduce the risk of transmission, and enable providers to reserve in-person care for higher acuity conditions.
These changes were crucial because regulatory and payment restrictions on telehealth limited its utility prior to the pandemic, except in certain situations and for specialized care for specific conditions. The COVID-19 expansion of telehealth resulted from a joint federal-state effort to waive, amend, and remove those restrictions. Importantly, inconsistencies in the approaches taken by states and the federal government, and inconsistent messaging from regulators, resulted in differing regulatory regimes for providers, particularly those who sought to provide care to patients across state lines, which was necessary as patients and providers scattered throughout the country in response to the pandemic. As a result, health care providers have raised questions regarding the permissibility of telehealth practice across state lines, and of potential exposure to audits for providers who have been reimbursed for telehealth services delivered to patients in states where providers may not be licensed. These questions – and the differences in approach taken between states – are becoming more acute as states terminate or allow state-level emergency declarations to expire, which in many cases end waivers that have enabled telehealth services during the pandemic.
Differences in telehealth regulation among New England states highlight the challenges for providers, and regulatory risks for practice across state lines. In response to the pandemic, Connecticut Governor Ned Lamont suspended state licensure requirements for telehealth services to facilitate the provision of telehealth services to patients in Connecticut by providers licensed in good standing in other states. Notably, out-of-state providers who met the minimum criteria under Governor Lamont’s order (and corresponding state Department of Public Health (DPH) orders available here and here) were authorized to provide telehealth services to individuals in Connecticut without completing any Connecticut registration or receiving a specific emergency license. The Connecticut legislature codified this approach with emergency legislation in July 2020 that was subsequently extended by Governor Lamont via executive order, and then superseded by follow-up legislation in 2021. As a result, out-of-state providers that maintain sufficient malpractice insurance are allowed to continue providing telehealth services to patients in Connecticut until DPH orders otherwise.
By contrast, Massachusetts Governor Baker’s order expanding access to telehealth services allowed for emergency licensure of physicians licensed in another state in good standing, but such out-of-state physicians were required to present a license verification to the Massachusetts Board of Registration in Medicine (BoRM) in order to be issued an emergency Massachusetts license. The Massachusetts Bureau of Health Professions Licensure then issued an order on licensure noting that BoRM “shall refrain from taking disciplinary action or other enforcement action solely upon the basis of providing telemedicine services to a patient in Massachusetts provided that the person providing such telemedicine services holds a valid Massachusetts license at the time the service is provided, including” an emergency license issued in response to COVID-19. Accordingly, to be able to provide telehealth services to a patient located in Massachusetts at the time of the visit, a physician would need to have obtained an emergency license from BoRM or other applicable licensure. Unlike in Connecticut, simply being licensed in good standing in another state was not sufficient to be licensed to provide telehealth services to individuals in Massachusetts.
Rhode Island took a third approach, in which the Department of Health’s (DOH) Board of Medical Licensure and Discipline (BMLD) issued guidance stating that although under normal circumstances “a physician not licensed to practice in Rhode Island cannot . . . treat a patient physically located in Rhode Island” due to the COVID-19 pandemic, the BMLD encouraged “all physicians to use telemedicine to deliver care to their patients” and would “not take action against physicians not licensed to practice in Rhode Island who, during the state of emergency, use telemedicine to deliver care to their established Rhode Island patients.” Interestingly, this guidance does not appear to have been accompanied by licensure waivers issued via executive order, but DOH did establish an emergency licensure approval process for out-of-state physicians who sought to obtain a license. Additionally, in early July 2021, the Rhode Island legislature codified modifications to the Rhode Island telemedicine parity law that had been included in Governor Raimondo’s executive order 20-06, which are intended to expand access and improve telehealth technologies in Rhode Island. Ultimately, however, out-of-state physicians could seek to obtain an emergency license from DOH (which are no longer being issued), or could rely on the BMLD guidance, which is limited by the duration of the state of emergency.
The different approaches among states, coupled with uncertainty regarding licensure rules applicable to telehealth encounters, almost certainly resulted in cases of non-compliance with various emergency orders, waivers, processes, and legislation. For example, although the location of the patient during the encounter generally governs licensure, providers may not have always be in a position to determine the patient’s location at the time of the encounter, thereby inadvertently running afoul of a state’s medical practice and licensure regulations. Whether such encounters are billable, or if already billed, could be subject to recoupment efforts, is an open question as payors and the government initiate audits and weigh the impact of the sudden expansion of telehealth on the health care system. Given the varying, and at times conflicting, guidance and requirements from regulators and executive orders, any out-of-state telehealth noncompliance may be immaterial from a reimbursement perspective as long as the service was provided in accordance with the standard of care. The government and payors will likely focus audit and recoupment efforts on bad actors who took advantage of COVID-19 programs for personal gain, and not to expand access to necessary care. However, the Office of the Inspector General has announced a more general approach as part of its work plan, and will review the use of Medicare telehealth services during the COVID-19 pandemic, and audit Medicare Part B telehealth services specifically. Accordingly, even providers who acted in good faith may be subject to such reviews and to heightened scrutiny of their telehealth activities. Therefore, prudent providers will assess their current compliance with licensure requirements, and plans for continued telehealth services in-state and across state lines, as COVID-19 waivers end and states determine how to move forward with telehealth services. Providers who received emergency licenses or similar in-state authorizations may want to follow up with state boards to determine options for maintaining licensure (e.g., by applying for a full license). It may also be advisable for providers to integrate processes into telehealth platforms that allow for documentation of patient location, and to implement restrictions on the provision of telehealth services to patients located in a state where the provider is not licensed. Finally, providers would also be well advised to advocate for the passing of legislation to maintain current telehealth flexibilities beyond the COVID-19 pandemic in order to maintain increased access to care for their patients.
Conor Duffy and Seth Orkand are attorneys with the law firm, Robinson & Cole LLP.