February 17, 2020

February 17, 2020

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Will the TELE-MED Act of 2015 Really Change Licensure Rules?

Congress is reviewing legislation designed to permit telemedicine providers to treat Medicare patients across state lines without the need for separate state licensure. The Telemedicine for Medicare Act of 2015 (S. 1778 and H.R. 3081), known as the TELE-MED Act of 2015, is sponsored by Representative Devin Nunes (R-CA), 15 Republicans and 9 Democrats in the House, and sponsored by Sen. Mazie K. Hirono (D-HI) and Sen. Joni Ernst (R-IA) in the Senate.

There are minor differences in the wording of the Bills in the House and the Senate, the key language is identical, stating:

In the case of a Medicare participating physician or practitioner who is licensed or otherwise legally authorized to provide a health care service in a State, such physician or practitioner may provide such a service as a telemedicine service to a Medicare beneficiary who is in a different State, and any requirement that such physician or practitioner obtain a comparable license or other comparable legal authorization from such different State with respect to the provision of such health care service by such physician or practitioner to such beneficiary shall not apply.

The Act is intended to reduce barriers to inter-state care, bringing more options to underserved areas and allowing providers to expand their reach. And it would, in the context of Medicare coverage qualifications for providers. But keep in mind, the TELE-MED Act proposes a change to Medicare coverage and reimbursement rules; it is not a federally-imposed change to eliminating state laws requiring a physician to be licensed in those various states. It is unclear how the TELE-MED Act will be interpreted in connection with states’ rights under the 10th Amendment. Even if Medicare does not require state licensure for payment purposes, the TELE-MED Act may not necessarily immunize a physician from unlicensed practice of medicine under state laws.

That said, the TELE-MED Act is another in a series of recent legislative efforts, both federal and state, designed to reduce barriers to care via telehealth. The TELE-MED Act is supported by at least 21 national associations and businesses, including the National Council for Behavioral Health and the U.S. Chamber of Commerce.

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About this Author

Nathaniel Lacktman, Health Care Attorney, Foley and Lardner Law Firm

Nathaniel (Nate) Lacktman is a partner and health care lawyer with Foley & Lardner LLP, and a Certified Compliance & Ethics Professional (CCEP). His practice focuses on health care compliance, counseling, enforcement and litigation, as well as telemedicine and telehealth. Mr. Lacktman is a member of the firm’s Health Care Industry Team which was named “Law Firm of the Year — Health Care Law” for three of the past four years on the U.S. News – Best Lawyers® “Best Law Firms” list. 

Blake A. Taelman, Foley Lardner, Dispute Resolution Lawyer, Mediation Attorney

Blake A. Taelman is an associate with Foley & Lardner LLP. He is a member of the firm’s Business Litigation & Dispute Resolution Practice.

Prior to joining Foley, Mr. Taelman was a judicial extern and a certified mediator for the Circuit Court of Cook County in Chicago, Illinois. He was also a summer associate for Pircher, Nichols & Meeks in Chicago, as well as for Foley in the firm’s Tampa office. While attending law school, Mr. Taelman worked in the Bluhm Legal Clinic Civil Litigation Center, primarily assisting in the defense of public housing tenants. Prior to law school, Mr. Taelman worked for Wells Fargo and in the residential construction and development industry.