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Department of Veterans Affairs Aims to Trump State Telemedicine Rules

The U.S. Department of Veterans Affairs (“VA”) is taking a significant step towards expanding needed services to Veterans by proposing a rule to preempt state restrictions on telehealth.

Most states currently restrict providers (including VA employees) from treating patients that are located in that state if the provider is not licensed there. As a result, the VA has had difficulty getting a sufficient number of providers to furnish services via telemedicine for fear that they will face discipline from those states for the unlicensed practice of medicine.

The VA has a real need for expanding its telemedicine capabilities as many of its patients are located in rural and underserved areas. The VA’s top clinical priority is mental health, and having more robust telemedicine capabilities could help improve timeliness of treatment (a reputational sore spot for the VA).  The VA could also use telemedicine to reach more people in need that may not otherwise seek help.  The rule would allow the VA to more evenly distribute care by hiring providers in urban areas where there is larger pool and have them treat in rural areas (via telemedicine).

The American Medical Association (“AMA”) has expressed support for the proposed rule.  Jack Resneck Jr., M.D., Chair-elect of the AMA Board of Trustees, issued the following statement showing the AMA’s support:

“The AMA supports expansion of clinically validated telehealth services within the VA, and this decision ensures that important patient protections are in place for the delivery of high quality and reliable care.  The VA has a unique federally controlled healthcare system with essential safeguards to help ensure that both in-person and virtual beneficiary care meet and exceed the standard of care.  The AMA strongly supports that the proposed rule explicitly provides that this program’s multi-state licensure exception applies only to VA-employed providers and would not be expanded to contracted physicians or providers who are not directly controlled and supervised by the VA and would not necessarily have the same training, staff support, shared access to a beneficiary’s EHR and infrastructure capabilities.  We applaud the VA’s expansion of telehealth services in a manner that promotes quality and access.”

Not everyone is happy about the proposed rule, however. Some organizations oppose the rule as undermining each state’s ability to govern the practice of medicine within its borders.  The concern is that states would have no ability to regulate their citizens’ care under this new framework.

While this rule is limited only to VA patients and providers, the hope is that other federal agencies or even states will follow the VA’s lead. Given the importance of increasing access to care and the advances in the delivery of care via telemedicine, it might be time for states to reexamine their restrictive approach to professional licensure.

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About this Author

Ryan Cuthbertson, Health Care Attorney, Mintz Levin, Air Force Alum, Lawyer
Staff Attorney

Before joining the firm, Ryan was with the US Air Force for nearly 10 years. Most recently, he was with the Defense Contract Management Agency, where he oversaw the contract performance and compliance of military development programs. Previously, Ryan was with the Air Force’s Electronic Systems Center and led a high-profile software development program, for which he drafted contract documents and managed cost, schedule, and performance. Prior to this, he was in the Aircraft Sustainment Group at Robins Air Force Base and was responsible for technical orders for the entire...

Ellen L. Janos, Health care attorney, mintz levin law firm

Ellen specializes in providing regulatory and strategic advice to health care clients of all types, including hospitals, long-term care facilities, hospices, retail pharmacies, PBMs, and pharmaceutical manufacturers.

She also represents companies doing business with, and investing in, health care providers. She represents clients in Medicare, Medicaid, and third-party payor audits and investigations; in the development of corporate compliance programs, HIPAA, privacy and security compliance initiatives; and in the negotiation and implementation of Corporate Integrity Agreements. She also provides strategic and regulatory advice on telemedicine issues and hospital/physician relationships, including compliance with the state and federal anti-kickback laws and the Stark Law.

Before joining Mintz Levin, Ellen was an assistant attorney general for the Commonwealth of Massachusetts. She represented state agencies responsible for health care reimbursement, licensing, and regulation in administrative and court proceedings, and prosecuted Medicaid fraud cases. She was also administrative counsel to the Massachusetts Attorney General, coordinating special health care projects and working with other state attorneys general through the National Association of Attorneys General.

Ellen is a member of the advisory committee that is working with the Massachusetts Health IT Council on the development and implementation of the statewide HIT strategic plan and health information exchange.

She has written about and speaks frequently on corporate compliance programs, board governance matters, HIPAA privacy and data security, technology and health care, and physician/hospital relationships.