Interstate Licensure for Telehealth Can Fuel Practice Growth
Provided by OSMA's malpractice insurance partner, The Doctors Company.
Chad Anguilm, Vice President, In-Practice Technology, Medical Advantage; David L. Feldman, MD, MBA, FACS, Chief Medical Officer, and TDC Group, and Senior Vice President, Healthcare Risk Advisors; and Remi Stone, JD, Regional Director, Government Relations
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 were eased to facilitate care during the COVID-19 pandemic, and the new normal of greater state-to-state cooperation for access to care may endure in the coming years. 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 about 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, however, 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. To ensure compliance, check state licensure and telehealth requirements for these scenarios.
For practices interested in growing their patient base, the 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 the restrictions imposed by state laws from the restrictions imposed by a professional liability carrier.
At The Doctors Company, our professional liability coverage follows 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 require a healthcare provider’s coverage and practice to be in the state where the provider is physically located, whether the provider is treating the patient through 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, which is an agreement between states, requires the passage of legislation in any new state that wants to join. It currently includes 39 states and territories. The IMLCC does not permit a physician with a license in one state to automatically obtain licensure in another, but it makes obtaining licensure easier. Even though physicians still need to gather documents and pay fees, the IMLCC streamlines the process.
Launched in 2017, the IMLCC had already issued more than 50,000 licenses by fall 2022.2 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. Occupational therapists will be able to access their compact privileges in late 2023 or early 2024, once the Occupational Therapy Licensure Compact Commission finalizes the infrastructure necessary for operation. Advanced practice registered nurses (APRNs) will enjoy access to an APRN compact once seven states enact legislation to enable it. An interstate compact for dentists and dental hygienists has been developed and is expected to be available for state adoption in 2023. Other provider specialties are likely to pursue similar authority in coming years.
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. Many of those waivers have ended. The Federation of State Medical Boards provides a list of states with telehealth waivers.
Controlled substances require particular caution when prescribing remotely or outside the state of licensure. In spring 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,” as this DEA policy will expire at the end of the public health emergency.
Just as we lived within a patchwork of state-to-state restrictions before the pandemic, we can now expect those restrictions to return in a non-synchronized fashion. One state may restore restrictions next week, another not until later. 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.
Recent Federal Action
At the end of December 2022, Congress passed a $1.7 trillion omnibus appropriations bill (HR 2617, the Consolidated Appropriations Act, 2023), funding the federal government through September 30, 2023. The bill extends and expands several telehealth provisions through December 31, 2024. These provisions expand the originating site to cover any site at which the patient is located, including the patient’s home. It also includes occupational therapists, physical therapists, speech-language pathologists, and audiologists as eligible practitioners who can furnish telehealth services; extends the ability to use telehealth services to meet the face-to-face recertification requirement for hospice care; extends the ability for federally qualified health centers and rural health clinics to furnish telehealth services; extends coverage and payment for audio-only telehealth services; and delays the six-month in-person requirement for mental health services furnished through telehealth.
Additionally, on November 1, 2022, CMS released the 2023 Physician Fee Schedule, solidifying access to telehealth and behavioral health services. The Physician Fee Schedule clarifies that chronic pain management services via telehealth will require the initial visit to be in-person. It also provides the regulatory framework to support the above-referenced Congressional actions.
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.
Although professional and legal risks remain when practicing across state lines, risks may be mitigated by administrative efforts that include 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. The latter is especially appealing given that some of the telehealth-friendly reimbursement rates introduced during the pandemic have persisted.
- Anguilm C. Telehealth: The new group practice growth vehicle. Medical Advantage. Published September 29, 2020. https://www.medicaladvantagegroup.com/blog/telehealth-the-new-group-practice-growth-vehicle/
- Interstate Medical Licensure Compact Commission. IMLCC processing information. November 2022. https://www.imlcc.org/
- DEA’s response to COVID-19: DEA is protecting the nation’s prescription drug supply chain [press release]. Drug Enforcement Administration. Published March 20, 2020. https://www.dea.gov/press-releases/2020/03/20/deas-response-covid-19
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.