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Telehealth Took Off During the Pandemic. Now, Battles Over State Lines and Licensing Threaten Patients’ Options

9 minute read

Televisits for medical care took off during the worst days of the pandemic, quickly becoming commonplace. Throughout, it’s probably seemed like it doesn’t matter what state the provider of these telehealth services is located. But that’s only because most states, along with the U.S. Centers for Medicare & Medicaid Services, temporarily waived rules requiring licensed clinicians to hold a valid license in the state where their patient is located. Now states are rolling back many of those pandemic workarounds—meaning the ability to conduct certain virtual appointments may be nearing an end.

Johns Hopkins Medicine in Baltimore, for example, recently scrambled to notify more than 1,000 Virginia patients that their telehealth appointments were “no longer feasible,” says Dr. Brian Hasselfeld, medical director of digital health and telemedicine at Johns Hopkins. Virginia is among the states where the emergency orders are expiring or being rolled back.

Only about 17 states still have waivers in effect, according to a tracker maintained by the Alliance for Connected Care, a lobbying group representing insurers, tech companies and pharmacies. As those rules end, “it risks increasing barriers” to care, says Hasselfeld. Johns Hopkins, he adds, hosted more than 1 million televisits, serving more than 330,000 unique patients, since the pandemic began. About 10% of those visits were from states where Johns Hopkins does not operate facilities.

The rollbacks come amid a longer and larger debate over states’ authority around medical licensing that the pandemic—with its widespread adoption of telehealth services—has put front and center.

“Consumers don’t know about these regulations, but if you all of a sudden pull the rug out from these services, you will definitely see a consumer backlash,” says Dr. Harry Greenspun, chief medical officer for the consultancy Guidehouse.

Why cross-state telehealth is an issue to begin with

Finding a way forward pits high-powered stakeholders against one another, and consumers’ input is likely to be muted.

Barak Richman, a Duke University law professor argues that laws and policies haven’t been updated to reflect new technological realities partly because state medical boards want to hang onto their authority. These state boards say their power to license and discipline medical professionals boosts patient safety. Licensing is also a source of state revenue.

Providers have long been split on whether to support changing cross-state licensing rules. Different state requirements—along with fees—make it cumbersome and expensive for doctors, nurses and other clinicians to get licenses in multiple states, leading some to call for more flexibility. Even so, those efforts have faced pushback from within the profession, with opposition from other clinicians who fear the added competition that could come from telehealth could lead to losing patients or jobs.

“As with most things in medicine, it’s a bottom-line issue,” says Greenspun. “The reason telehealth has been blocked across state lines for many years related fundamentally to physicians wanting to protect their own practices.”

But the pandemic changed the equation. Even though the initial spike in telehealth visits has eased, use of the services has stabilized at levels 38 times higher than before the pandemic, according to a July report from consulting firm McKinsey and Co. Patients’ experience with televisits coupled with the growing interest by investors is focusing attention on this formerly inside-baseball issue of cross-state licensing.

Meanwhile, patients and their doctors are getting creative, with some simply driving across state lines, then making a Zoom call from their vehicle. “It’s not ideal, but some patients say they are willing to drive a mile or two and sit in a parking lot in a private space and continue to get my care,” says Dr. Shabana Khan, director of telepsychiatry at NYU Langone Health’s department of child and adolescent psychiatry. She and other practitioners ask their patients about their locations, mainly for safety reasons, but also to check that they are in-state. Other patients, of course, are seeing telehealth care providers many miles away, so driving to another state for a virtual appointment will not ever be a realistic option. Khan worries about people whose care is interrupted by the changes, especially those reluctant to seek out new therapists or who cannot find any clinicians taking new patients.

Austin Smith hopes that doesn’t happen to him. After initial treatment for what he calls a “weird flavor of cancer” didn’t help reduce his gastrointestinal stromal tumors, he sought out other options and eventually landed in a clinical trial for a drug to treat his cancer. But it was in San Diego and the 29-year-old salesman lives in Phoenix.

Although he drives more than five hours each way every couple of months for treatment and to see his doctors, he does much of his other follow-up online. And if the rules change? It will mean a lot of inconvenience and time on the road for him compared to his current on-line follow up care but he’ll keep making the drive. “I’ll do anything to beat this,” he says of his cancer.

Where doctors stand

But will doctors, whose patients have spent the past year or more growing comfortable with virtual visits, also be willing to take steps that could likely involve extra costs and red tape? For instance, submitting license applications in another state can take weeks or even months. They must pay application fees and then have to keep up with a range of ongoing requirements such as continuing education, which vary by state.

States boards say their traditional role as medical practitioner overseers ensures that all applicants meet educational requirements and pass background checks. They also investigate complaints and argue there’s an advantage to keeping local officials in charge. “It’s closer to home,” says Lisa Robin, chief advocacy officer with the Federation of State Medical Boards. “There’s a remedy for residents of the state with their own state officials.”

Some doctor groups, such as the American Medical Association, agree. Allowing a change that removes centralized authority from a patient’s home state would raise “serious enforcement issues as states do not have interstate policing authority and cannot investigate incidents that happen in another state,” said then-AMA President-elect Jack Resneck during a congressional hearing in March.

But others want more flexibility and say it can be done safely. Hasselfeld, at Johns Hopkins, says there is precedent for easing multistate licensing requirements. The Department of Veterans Affairs, for example, allows medical staffers who are properly licensed in at least one state to treat patients in any VA facility.

The Alliance for Connected Care and other advocates are pushing states to extend their pandemic rules. A few have done so. Arizona, for example, made permanent the rules allowing out-of-state medical providers to practice telemedicine for Arizona residents, as long as they register with the state and their home-state license is in good standing. Connecticut’s similar rules have now been stretched until June 2023.

Advocates also call for the federal government to enact more sweeping changes, and back legislation pending in Congress that would temporarily allow medical professionals licensed in one state to treat—either in person or via televisits—patients in any other state.

The working models for a future system

Because such fixes are controversial, voluntary interstate pacts have gained attention. Several already exist: one each for nurses, doctors, physical therapists and psychologists. Proponents say they are a simple way to ensure state boards retain authority and high standards, while making it easier for licensed medical professionals to expand their geographic range. The nurses compact, enacted by 37 states and Guam, allows registered nurses with a valid license in one state to have it automatically recognized by all the others in the pact

A different kind of model is the Interstate Physician Licensure Compact, which has been enacted by 33 states, plus the District of Columbia and Guam, and has issued more than 21,000 licenses since it began in 2017, says Robin, of the Federation of State Medical Boards. While it speeds the paperwork process, it does not eliminate the cost of applying for licenses in each state.

The compact simplifies the process by having the applicant physician’s home state confirm his or her eligibility and perform a criminal background check. If the applicant is eligible, the home state sends a letter of qualification to the new state, which then issues a license. To be eligible, physicians must meet all rules and laws in each state, such as requirements for continuing medical education. Additionally, they cannot have a history of disciplinary actions or currently be under investigation. “It’s a fairly high bar,” says Robin.

Such compacts—especially if they are bolstered by new legislation at the federal level—could help the advances in telehealth made during the pandemic stick around for good, expanding access to care for both mental health services and medical care across the U.S. “What’s at stake if we get this right,” says Richman at Duke, “is making sure we have an innovative marketplace that fully uses virtual technology and a regulatory system that encourages competition and quality.”

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.

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