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Some states are loosening their licensing and regulatory requirements to allow more patients to access telehealth services during the COVID-19 pandemic.
Telehealth — which can encompass traditional clinical care, such as diagnosis and monitoring, as well as patient education, wellness promotion and other services — was receiving significant attention even before COVID-19 as a way to increase access to medical care. Telehealth is often limited by state borders, however, as states typically require any health care practitioner to be licensed in the state where a patient receives care. These restrictions meant that services provided by out-of-state practitioners often were not reimbursable. They also created liability risks for practitioners, who could face allegations of practicing without appropriate licensure.
Some states — including several of the states hit hardest by COVID-19 — have temporarily abandoned such requirements. For example:
Pennsylvania has suspended licensing requirements to allow licensed practitioners in other states to provide telehealth services to Pennsylvanians, without obtaining a license to practice in the Commonwealth, for the duration of the COVID-19 emergency.
New Jersey passed a pair of laws expanding access to telehealth and expediting the process by which health care providers licensed in other states can become licensed in New Jersey during a declared public health emergency.
Delaware is allowing out-of-state health care providers to treat Delawareans via telehealth so long as the provider has an active license in another jurisdiction.
New York is allowing physicians, registered nurses, licensed practical nurses and nurse practitioners who are licensed in other states to practice in New York, and certain regulations have been suspended to allow for greater use of telemedicine.
The federal government has taken steps to encourage the expansion of telehealth services during the COVID-19 pandemic. That said, professional licensure for health care providers generally remains within the ambit of individual states, meaning providers should look to the state where a patient lives to determine if telehealth services can be given across state lines.
Even states that have loosened traditional licensure rules are not necessarily doing so without adding some requirements. Pennsylvania, for instance, is requiring out-of-state practitioners to provide their contact information, license type and other information to the Pennsylvania board that provides relevant licensing to in-state providers (e.g., boards of medicine, nursing or pharmacy, among several others). And these changes, where they are being made, are explicitly linked to the ongoing pandemic, meaning they are likely to expire once states of emergency are lifted.
Health care practitioners must also be sensitive to such rules, as they could be subjected to professional sanctions for providing care without an appropriate license, or face other legal ramifications if they run afoul of a state’s licensing regime.
As telehealth services expand to help deal with the COVID-19 outbreak, providers should take the following actions before offering services to out-of-state patients:
Determine whether an out-of-state provider can provide diagnoses, care or other services without a license in the state where the patient is located.
Even where no new license is required, determine whether the state where the patient is located requires any form of special registration before telehealth service commences.
Determine the duration of any waiver of licensing requirements to offer telehealth services to patients in other states.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.