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COVID-19: State Law Telehealth Update: State Licensure Requirements Persist, Permissible Telehealth Modalities Generally Expand, and Insurance Parity Laws Ensure Reimbursement

PART 1: STATE LICENSURE REQUIREMENTS, FLEXIBILITIES AND INTERSTATE COMPACTS

As the explosion of telemedicine continues during and, as many expect, after the COVID-19 public health emergency, state laws and regulations that affect the delivery of telemedicine services continue to expand and contract. In this three-part series, we explore key state regulatory considerations related to the provision of care through telehealth, including state licensure requirements, the establishment of the patient-provider relationship and permissible modalities for the delivery of health care in a particular state, and Medicaid and insurance regulations that affect reimbursement and payment parity, among other things. Each of these areas is essential to understand, on a state-by-state basis, to successfully implement telemedicine services and to forecast whether alternative care models will continue to develop and endure. While intended to provide only illustrative examples across a small sample of states, it is clear, even from this high-level survey that we can expect to see the continual evolution of telehealth regulations and models throughout 2022 and beyond.

BASIC STATE LICENSURE REQUIREMENTS FOR TELEHEALTH PROVIDERS

State licensure is a gating issue for the provision of telehealth services, especially since many health care practitioners providing telehealth services are physically located outside of the state where the patient originates. Although telehealth capabilities enable providers to render care across state lines, state licensure laws often prohibit providers not licensed in the state in which the patient is located from providing care to that patient. In the face of quarantine requirements, travel restrictions, and a renewed emphasis on alternative care models intended to prevent the spread of COVID-19, in the early part of the COVID-19 pandemic many states relaxed or waived in-state licensure requirements, or otherwise granted temporary licenses to out-of-state practitioners. These allowed health care providers to more readily provide telehealth services to patients originating in a state other than where the health care provider was located and licensed, extending access to care in much needed ways when most in-person non-emergent care was significantly reduced nationwide.

With the emergence through 2021 and into 2022 of new, potentially more virulent strains of the virus that causes COVID-19, some states have continued to extend their public health emergency (PHE) declarations, as well as other flexibilities that impact the provision of telehealth services. In fact, some states, recognizing the utility of telehealth services and the evolution of technology solutions that allow for the safe and effective delivery of health care through alternative modalities, have created new, permanent licensure pathways.

Other states, however, have retracted licensure waivers and other flexibilities based on the assumption that improvements in vaccination and infection rates throughout 2021 would result in less strain on the health care system and a reduced need for the provision of remote care. We outline examples of both approaches below.

ROLLING BACK COVID-19 FLEXIBILITIES

Some states have rescinded PHE declarations, or simply allowed them to lapse. As a result, the regulatory flexibilities impacting telehealth services in those states have terminated. For example, Florida’s governor allowed the state’s PHE to expire on 26 June 2021, which means that the Florida Surgeon General’s Emergency Order 20-003 also expired.Emergency Order 20-003 had been in effect since 16 March 2020, and allowed health care professionals not licensed in Florida to provide telehealth services to patients physically located in Florida.The Florida Board of Medicine acknowledged that, with the expiration of Emergency Order 20-003, the only way for health care professionals to render telehealth services in Florida is to become licensed in Florida.3 Fortunately, Florida already had a registration process for out-of-state health care professionals, which creates flexibility for such practitioners desiring to provide telehealth services to patients originating in Florida, but not all states have such flexibilities in place outside of exigent circumstances like the PHE.

Other states that have rolled back state licensure flexibilities for telehealth services include Virginia and New York. Virginia’s PHE declaration expired 30 June 2021, and, with it, Executive Order 57 expired. Executive Order 57 allowed practitioners with an active license in another state to provide continuity of care through telehealth to their current patients residing in Virginia.However, as 2021 ended and a new year began and the Omicron variant ramped up, further straining healthcare facilities and workers, Virginia’s government issued Executive Order 84 on 10 January 2022. Executive Order 84 reinstates the continuity of care telehealth exception.New York is another example where the governor allowed the PHE to expire, also at the end of June 2021. Expiring along with it were the broad licensure waivers conferred by Executive Order 202.5, which allowed providers licensed and in good standing in any U.S. state to practice in New York without penalty.However, on 7 September 2021, because of healthcare staffing shortages, Governor Kathy Hochul declared another PHE and reinstated the licensure waivers.

EXPANDED LICENSURE PATHWAYS & INTERSTATE COMPACTS

Other states, by contrast, have viewed telehealth as more than a trend or a Band-Aid for exigent circumstances. No doubt prompted by the PHE and the drastic measures required to continue to deliver non-emergent care, but propelled by the flexibility and desirability of remote care for some conditions as well as patient and provider willingness to embrace alternative care models, these states are making permanent changes that will make it easier for out-of-state health care providers to practice telehealth across state lines. As patients and providers become more accustomed to these modalities and a more consumer-oriented approach to health care, and policymakers see the benefit of greater access to health care services at reduced cost to both patient and provider, we expect to see this trend of expanded access continuing. 

New permanent pathways for licensure include abbreviated licensure processes similar to Florida’s, as well as interstate licensure compacts. For example, in May of 2021, Arizona enacted HB 2454, which permits out-of-state licensed practitioners to provide telehealth services to patients in Arizona by registering with the appropriate professional board.The registration process provided by Arizona’s new law appears less robust than the requirements for full in-state licensure, and the law only permits the registrant to practice telehealth. This registration process is in addition to Arizona’s participation in the Interstate Medical Licensure Compact (IMLC), another vehicle for the expansion of telehealth across state lines (more fully explained below). 

In addition to Arizona, West Virginia, Kansas, and Connecticut have recently expanded state telehealth licensure requirements, or otherwise made regulatory waivers enacted during the COVID-19 PHE permanent. Around the same time Arizona enacted its law, West Virginia enacted a similar law that would allow health care practitioners licensed and in good standing in another state to pay a fee to register with the West Virginia medical board, become an “interstate telehealth practitioner,” and treat patients located in West Virginia.10 Not long after that, in June of 2021, Kansas passed a law that would allow physicians licensed in other states, or who otherwise meet Kansas’ licensure requirements, to apply for a waiver from the Kansas State Board of Healing Arts to practice telemedicine to treat patients located in Kansas.11 Additionally, Connecticut enacted a bill that will allow out-of-state providers to provide telehealth services to patients in Connecticut through 30 June 2023.12 Specifically, it authorizes Connecticut’s Commissioner of Public Health to issue an order allowing an out-of-state licensed physician or physician assistant to provide services via telehealth through 30 June 2023 without obtaining a Connecticut license.

Another approach, one that many health care providers are advocating, involves the adoption of an interstate compact, such as the Interstate Medical Licensure Compact. Interstate compacts are binding agreements between participating states that make it easier for providers to render telehealth services across state lines by creating an expedited path to licensure in participating states. The IMLC is one such agreement among participating states, streamlining the licensing process for physicians already licensed in a participating state who want to provide health care services in multiple states. A physician must meet the eligibility criteria established by the IMLC and hold his or her principal license in a participating state to qualify for an expedited license.13 

Since the COVID-19 pandemic began, Texas, Delaware, and Ohio have joined the IMLC,14 and legislation to join is pending in other states, including Massachusetts, New Jersey, New York, and North Carolina.15 To date, the compact includes 33 states, the District of Columbia, and Guam.16 States that recently joined the IMLC are in the process of implementing recently passed legislation regarding their respective expedited licensure processes under the IMLC.17 In addition to the IMLC, there are interstate licensure compacts for nursing,18 physical therapy,19 and, more recently, counseling.20 Compacts only create an expedited pathway to licensure in a given state, but can, and did, coexist with state PHE waivers and flexibilities. The benefits of the PHE waivers and flexibilities are that they often authorized interstate telehealth practice without any further action by the practitioner. Compacts nevertheless offer a more permanent licensure pathway, which may be increasingly important as PHE declarations expire.

In Part 1 of this State Law Telehealth series, we have reviewed ever-evolving physician licensure requirements under state medical board regulatory regimes, both under the PHE and beyond. In Part 2 of this series, we will explore various state law approaches to the establishment of the patient-provider relationship and permissible modalities for the delivery of health care via telehealth. 

FOOTNOTES

Exec. Order No. 21-94, https://www.flgov.com/wp-content/uploads/2021/04/EO-21-94.pdf

Emergency Order No. 20-003, https://www.flhealthsource.gov/pdf/DOH-EO-20-003.pdf Exec. Order No. 20-52, https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-52.pdf (original executive order declaring public health emergency)

Fla. Bd. of Med., Expiration of Emergency Order 20-002 and Emergency Order 20-003 (July 1, 2021), https://r.bulkmail.flhealthsource.gov/mk/mr/JV-U0AMitwBXlP7zcFx3Djqu1KfE...

FLA. STAT. ANN. § 456.47(4).

Exec. Order No. 57, https://web.archive.org/web/20210909092438/https://www.governor.virginia...(COVID-19)---Further-Extension-of-Certain-Waivers.pdf

Exec. Order No. 84, https://www.wjhl.com/wp-content/uploads/sites/98/2022/01/EO-84-Action-to...

Exec. Order No. 202.5, https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202_5.pdf.

Exec. Order No. 4, https://www.governor.ny.gov/sites/default/files/2021-09/EO_4_Disaster.pdf

HB 2454, 55 Leg., 1st Sess. (Ariz. 2021), https://www.azleg.gov/legtext/55leg/1R/bills/HB2454H.pdf

10 HB 2024 2021 Sess. (W. Va. 2021), http://www.wvlegislature.gov/Bill_Text_HTML/2021_SESSIONS/RS/signed_bill...

11 HB 2208 2021 Sess. (Kan. 2021), http://www.kslegislature.org/li/b2021_22/measures/documents/hb2208_enrol...

12 HB 5596 2021 Sess. (Conn. 2021), https://www.cga.ct.gov/2021/ACT/PA/PDF/2021PA-00009-R00HB-05596-PA.PDF.

13 Interstate Med. Licensure Compact, A Faster Pathway to Physician Licensure, https://www.imlcc.org/a-faster-pathway-to-physician-licensure/

14 Interstate Med. Licensure Compact, Tex.as (June 8, 2021),: https://www.imlcc.org/wp-content/uploads/2021/06/Information-Release-Tex... Interstate Med. Licensure Compact, Del. (June 23, 2021)aware,: https://www.imlcc.org/wp-content/uploads/2021/06/Information-Release-Del... Interstate Med. Licensure Compact, Ohio (July 1, 2021),: https://www.imlcc.org/wp-content/uploads/2021/07/Information-Release-Ohi...

15 Interstate Med. Licensure Compact, Participating States, https://www.imlcc.org/participating-states/

16 Id.

17 Id.

18 NCSBN, Nurse Licensure Compact (NLC), https://www.ncsbn.org/nurse-licensure-compact.htm

19 FSBPT, Physical Therapy Licensure Compact, https://www.fsbpt.org/Free-Resources/Physical-Therapy-Licensure-Compact

20 Counseling Compact, https://counselingcompact.org/

Copyright 2022 K & L GatesNational Law Review, Volume XII, Number 52
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Leah D'Aurora Richardson Health Care Attorney K&L Gates Research Triangle Park, NC
Partner

Leah D’Aurora Richardson is a partner in the firm’s Research Triangle Park office. Ms. D’Aurora Richardson advises academic medical centers, health systems, hospitals, hospices, and ancillary service providers, such as pharmacies, and durable medical equipment suppliers and clinical laboratories, on all areas of transactional and regulatory health law, including:

  • Responding to governmental investigations related to healthcare regulatory matters, including Anti-Kickback Statute and Stark Law compliance, and complex billing matters.
  • Compliance with...
919.466.1126
Gina Bertolini Healthcare Lawyer K&L Gates Law Firm Research Triangle Park North Carolina
Partner

Gina Bertolini is a partner in the Research Triangle Park officer and concentrates her practice exclusively on health law; primarily representing academic medical centers, hospitals, and health systems. She counsels senior health system and academic medical center leadership on a variety of governance, transactional, operational, and regulatory matters. In this context, she advises hospital, health system, and academic medical center clients on a multitude of legal matters, including state and federal regulatory affairs, such as federal Stark and anti-kickback statutes, EMTALA, HIPAA, and...

919.466.1108
Elaine C. Naughton Healthcare Lawyer KL Gates Nashville
Associate

Elaine Naughton is an associate at the firm’s Nashville office and is a member of the Health Care and FDA practice group. She provides health care regulatory counsel on compliance, operational, and transactional matters, and works with a wide range of clients in the health care industry, including hospitals, health systems, academic medical centers, hospices, home health providers, urgent care centers, ambulance providers, laboratories, and specialty pharmacies. Elaine’s compliance and operational experience includes fraud and abuse inquiries, contracting, complex licensure analyses,...

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