Feds, States Tackle Licensing Barriers to Cross-Border Telehealth

March 19, 2020, 9:28 PM

Vice President MIke Pence’s announcement Wednesday that doctors will be allowed to practice medicine across state lines via telehealth during the coronavirus crisis is eliciting wary reactions from attorneys and telehealth supporters.

State licensing rules, which typically require health-care providers to be licensed in the state where their patient is located, have long acted as a barrier to cross-border provision of telehealth services.

Pence said a document on the change would be forthcoming, but the Department of Health and Human Services has provided no further information so far.

Attorneys and promoters of telehealth are split as to whether the HHS has the authority to waive state licensing rules and fling open the doors to cross-border telehealth services.

Thomas Barker, co-chair of the health-care practice at Foley Hoag in Washington, D.C., said Section 1135 of the Social Security Act gives the HHS the authority it needs to waive state licensing rules. Section 1135 authorizes the HHS secretary to temporarily waive or modify certain Medicare, Medicaid and other program requirements to ensure sufficient health-care services are available to meet the needs of people enrolled in those programs during an emergency.

Craig H. Smith, a partner with Hogan Lovells in Miami who formerly served as the general counsel for Florida’s Agency for Health Care Administration, said a Section 1135 waiver applies to rules for reimbursement under Medicare, Medicaid, and the Children’s Health Insurance Program but doesn’t affect state licensing rules.

“I’m not aware of any federal authority under Section 1135 to waive state licensing requirements,” Smith said. The result is that state law could continue to prohibit telehealth services even though the federal government would allow reimbursement for those services under a Section 1135 waiver, he said.

Representatives of the American Telemedicine Association and of the Alliance for Connected Care, two groups that lobby for wider access to telehealth services, said they are awaiting further guidance from the HHS.

The HHS media office didn’t respond to repeated requests for clarification.

Emergency Compact

The value of telehealth has been highlighted during the current crisis because it provides a way for people to receive medical care without risking exposure to the new coronavirus at a hospital or doctor’s office. Cross-border telehealth services could help fill shortages of doctors and nurses that could arise if health-care workers fall ill or an outbreak overwhelms capacity in a given area.

Governors in several states have already acted to loosen licensing rules in response to the crisis. But that could lead to a complex patchwork of varying requirements for providers interested in offering telehealth services, according to Krista Drobac, executive director of Alliance for Connected Care.

Drobac is looking to the Emergency Management Assistance Compact, an agreement among the states and U.S. territories allowing sharing of resources during emergencies, as a tool to eliminate telehealth licensure barriers.

The EMAC includes a provision for someone licensed in one state to be licensed in another facing an emergency when the compact is invoked.

Trina Sheets, executive director of the National Emergency Management Association, which administers the compact, said the compact has not been used in the past to provide telehealth services but would make a good vehicle for that purpose.

A governor who has invoked the compact would simply list telehealth services among the resources being requested, she said.

“I would love to see it used this way,” Sheets said. “It would open up another resource for states to use in emergencies both now and in the future.”

To contact the reporter on this story: Christopher Brown in St. Louis at ChrisBrown@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Peggy Aulino at maulino@bloomberglaw.com

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