Below is an excerpt of a contributed article co-authored with Robinson+Cole Business Litigation Group partner Seth Orkand published in Medical Economics on July 27, 2021.
How a hodgepodge of federal and state telehealth waivers creates compliance concerns for providers practicing across state lines.
In response to the devastating COVID-19 pandemic in 2020, the federal government and state governments took a number of overlapping actions to promote telehealth as an alternative method for effectively delivering patient care while lowering risk of transmission – passing laws, updating regulations, issuing waivers and executive and agency orders, and releasing sub-regulatory guidance. Insurance companies and providers took corresponding steps to embrace telehealth, standing up new telehealth platforms and processes almost overnight. The result was a significant expansion of telehealth services, programs, and technologies that enabled patients to access critical care from the comfort of their homes, reduce the risk of transmission, and enable providers to reserve in-person care for higher acuity conditions.
These changes were crucial because regulatory and payment restrictions on telehealth limited its utility prior to the pandemic, except in certain situations and for specialized care for specific conditions. The COVID-19 expansion of telehealth resulted from a joint federal-state effort to waive, amend, and remove those restrictions. Importantly, inconsistencies in the approaches taken by states and the federal government, and inconsistent messaging from regulators, resulted in differing regulatory regimes for providers, particularly those who sought to provide care to patients across state lines, which was necessary as patients and providers scattered throughout the country in response to the pandemic. As a result, health care providers have raised questions regarding the permissibility of telehealth practice across state lines, and of potential exposure to audits for providers who have been reimbursed for telehealth services delivered to patients in states where providers may not be licensed. These questions – and the differences in approach taken between states – are becoming more acute as states terminate or allow state-level emergency declarations to expire, which in many cases end waivers that have enabled telehealth services during the pandemic. Read the article.