When using telehealth to treat patients out of state, most healthcare professionals are mindful about licensure issues. But some are not aware that practicing without a license in a given state is not just malpractice, it is a criminal offense.
Licensing restrictions have been eased to facilitate care during the COVID-19 pandemic, and the new normal of greater state-to-state cooperation for access to care may persist after the pandemic. Many restrictions still apply, however, and understanding them can help reduce risk.
First-Time Visits vs. Established Patients
When discussing interstate licensure, we are less concerned with a one-time interaction with an established patient who happens to be traveling. One example: a practitioner has recently examined a patient or performed a procedure. The patient later calls with a question or a problem from another state while traveling. In this scenario, the practitioner can simply address the patient’s concerns by a phone conversation, a telehealth visit, or a recommendation to go to the nearest emergency room, according to their best clinical judgment.
Caution is required when planning for ongoing interactions with patients who will be across state lines from the practitioner as their regular routine, or when booking an initial interaction via telehealth with a new patient who is in another state. Most states require practitioners to be licensed in the state where the patient is located, and some may require a pre-existing relationship with the patient prior to a telehealth visit. Check state licensure and telehealth requirements for these scenarios to ensure compliance.
For practices interested in growing their patient base, the recent easing of restrictions related to licensure and place of service provides an opportunity to approach a national telehealth platform. If properly implemented, interstate telehealth care can fuel practice growth.1 Healthcare providers have an incentive to understand both the risks and the benefits of practicing across state lines.
State Laws vs. Insurer Requirements
In addition to distinguishing established patients from first-time patients and distinguishing one-time interactions from ongoing care plans, it is important to separate restrictions imposed by state laws from restrictions imposed by a professional liability carrier.
Professional liability coverage from The Doctors Company follows our members wherever they practice in the U.S., provided they are acting within the scope of the law, including state licensure requirements (which is where legal restrictions on state-to-state practice and insurance coverage overlap). Other insurers may have specific limitations about practicing in another state, independent of any legal restrictions.
Many insurance companies will require a healthcare provider’s coverage and practice to be in the state where the provider is physically located, whether the provider is treating via telehealth encounters or in-person visits.
Interstate Licensure Compacts
The Interstate Medical Licensure Compact Commission (IMLCC) makes it easier for physicians to obtain a license to practice in more than one state. The compact is an agreement between states, and it requires the passage of legislation in any new state that wants to join. It currently includes 35 states and territories. The IMLCC does not permit a physician with a license in one state to automatically obtain licensure in another, but it does make it easier. Through the IMLCC, physicians will still need to gather documents and pay fees, but the IMLCC will streamline the process.
The IMLCC was launched in 2017, and by summer 2021, had already issued more than 22,000 licenses.2 The great value of the IMLCC has been proved by the pandemic, and as telemedicine usage increases, we can expect to see even more physicians requesting licenses in multiple states.
In addition to making the licensing process easier for physicians, the IMLCC may improve healthcare access for patients in rural areas, for example, with more specialists available via telemedicine.
Similar compacts exist for registered and licensed practical/vocational nurses, physical therapists, and audiologists/speech language pathologists. The intended goal of the compacts is to increase access to healthcare, reduce costs, and facilitate ease of licensure and telehealth practice where authorized. Advance practice registered nurses (APRNs) will enjoy access to an APRN compact once seven states enact legislation to enable it. Occupational therapists are similarly positioned and will be able to access their compact once 10 states enact legislation. An interstate compact for dentists is being developed, so it has not yet been released for consideration. When it is, model legislation will be proposed for state ratification. Other provider specialties are expected to pursue similar authority in the years to come.
Prescribing Across State Lines
Additional caution is required when prescribing is involved. During the first wave of the pandemic in the spring of 2020, many states temporarily waived various requirements affecting remote prescribing and state-to-state licensure. This includes, in many states, the common requirement that a provider see a patient in person first before prescribing remotely. Those waivers may or may not persist.
Controlled substances, especially, require caution when prescribing remotely or outside the state of licensure. In the spring of 2020, the Drug Enforcement Administration (DEA) temporarily lifted some restrictions around prescribing controlled substances by remote visit to patients the prescriber had not met in person.3 The key word here is “temporarily.” Just as we lived within a patchwork of state-to-state restrictions before the pandemic, now we can expect those restrictions to return in a non-synchronized fashion. One state may restore restrictions next week, another not until next. To avoid the potential for surprise DEA charges, consider contacting your local health authority and/or specialty association to inquire about its tracking activities as states lift or reinstate restrictions.
Although professional and legal risks remain when practicing across state lines, these risks may be mitigated by administrative efforts, including complying with licensing requirements, keeping abreast of regulatory changes, and following reimbursement rules. The rewards for doing so can be substantial and range from the personal, such as enjoying the ease and satisfaction of being able to provide care from the comfort of (perhaps) a home office, to the business rewards of being able to offer telehealth in multiple states—which is especially appealing given that some of the telehealth-friendly reimbursement rates introduced during the pandemic will persist.4,5
In fall 2020, the Centers for Medicare and Medicaid Services (CMS) added 11 new telehealth services that Medicare will reimburse for the duration of the pandemic.6 On July 13, 2021, CMS released its 2022 Physician Fee Schedule Proposed Rule recommending that those services added to the Medicare telehealth list remain on the list until the end of December 31, 2023. The services will be evaluated to determine whether they should be permanently added to the telehealth list following the expiration of the COVID-19 public health emergency. This includes proposed expansion of access to behavioral healthcare services. Meanwhile, commercial reimbursement rates are tightening on visit types deemed telehealth appropriate. As conditions continue to change, keep a watchful eye on your major payers to ensure compliance.
Find information on additional telehealth topics in our Telehealth Resource Center, or contact the Department of Patient Safety and Risk Management at (800) 421-2368 or email@example.com.