The Post COVID-19 World: Continued Focus on Relaxing Telehealth Barriers
This week, Senators Marsha Blackburn (R-TN) and Ted Cruz (R-TX) proposed the Equal Access to Care Act (the “EACA”), which would allow licensed providers to provide services via telehealth in any state, in any location for up to 180 days after the end of the public health emergency period.
The EACA changes the way that existing rules and regulations relating to telehealth services are applied. For example, the EACA eliminates the requirement present in many states that an out-of-state licensed provider must obtain a license or permit (or some other form of authorization) from the state in which the patient is located in order to treat the patient via telehealth or otherwise. For a 180-day period, the EACA would allow physicians to provide telehealth services to patients in any state so long as the physician is licensed in the state that he/she is located in.
This is yet another example of Congress easing telehealth requirements in order to promote the use of telehealth as a way to meet current healthcare imperatives – increasing access to healthcare while alleviating pressure on hospitals and other bricks-and-mortar facilities and maintaining social distancing during the pandemic (See, June 18, 2020 blog article on the HEALTH Act of 2020, another bill aimed at broadening the reach of telehealth). In fact, in a June 19, 2020 Press Release from the Office of Senator Blackburn, Senator Blackburn specifically stated that she supported EACA because it would, “result in more services in more places by more providers so that Americans can get care without the risk of exposing themselves to COVID-19.” In addition, both Senators Blackburn and Cruz have cited the need to remove bureaucratic barriers in order to allow more people access to telehealth services.
In reviewing the EACA, it is instructive to look at CMS’ prior waivers of telehealth requirements as a way to understand how meaningful the passage of EACA would to the continuing expansion and use of telehealth beyond the current healthcare emergency.
On March 17, 2020, CMS broadened access to Medicare telehealth services during the public health emergency so that Medicare beneficiaries could receive a wider range of services from their doctors without having to travel to a healthcare facility (See, March 17, 2020 blog article). On April 30, 2020, CMS issued additional waivers to expand Medicare’s coverage of telehealth services during the pandemic by increasing the range of covered telehealth services, the types of providers that can provide and be reimbursed for telehealth services, and to make other changes that would ease Medicare beneficiary access to telehealth services. See, CMS Press Release dated April 30, 2020.
By way of comparison, EACA is much broader in application than the CMS waivers of March and April and other CMS telehealth actions to date. First, CMS’ actions were only applicable to the coverage of healthcare programs under CMS’ purview – Medicare, Medicaid, CHIP, etc. – and the provision of care to the beneficiaries of such programs. As exhibited by the EACA, Congress’ reach is much greater than CMS’ reach. The EACA as proposed in the Senate applies to all telehealth services as provided to all patients. In other words, the EACA applies regardless of healthcare program or plan at issue.
Second, whereas CMS is unable to make changes beyond the scope of the healthcare programs that it administers, Congress is able to go further and address other legal constraints on the use of telehealth services. For example, a significant impediment to the wholesale adoption of telehealth services arises from the patchwork of state laws that often require licensed healthcare professionals to have licenses in both the states in which they are resident and the states in which their patients are located. In a telehealth setting, such laws create an obvious and significant burden on healthcare practitioners who want to expand their reach into other states. In order to alleviate this burden, the EACA eliminates the multiple licensing requirements applicable to telehealth providers and, in turn, creates uniformity from one state to another across the country on this subject. According to Senators Blackman and Cruz, Congress is authorized to supersede the states in the area of cross-border licensing because Congress has the authority to regulate interstate commerce.
As described above, the EACA, if adopted, would be a significant step in expanding the reach of telehealth into all corners of the U.S – at least for the 180-day period following the end of the current healthcare emergency. What happens after the 180 day period ends? It remains to be seen. However, if Congress’s ability to legislate in the area of healthcare licensing on a national level is accepted and telehealth’s adoption as an alternative to in-person treatment increases, it is unlikely that Congress will be satisfied with 180 days. Instead, we would expect Congress to move toward more permanent action to solidify telehealth’s place in the U.S. healthcare market.
This article is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, but which are not referenced in this article.
 As of November 2019, forty-nine (49) state boards, plus the medical boards of District of Columbia, Puerto Rico, and the Virgin Islands, require that physicians engaging in telemedicine be licensed in the state in which the patient is located.