On December 3 the U.S. Department of Health and Human Services authorized health care practitioners licensed in other states to provide telehealth services across state lines for the duration of the COVID-19 public health emergency. This emergency measure only applies to practitioners who provide testing and treatment of COVID infections. It preempts state licensing laws that erect barriers to such care.
This order expands upon an earlier decision by HHS to authorize Medicare payments to providers of telehealth services both within and across state lines during the pandemic. That action had limited effectiveness, because state professional licensing laws block telehealth across state lines.
Many states unilaterally suspended these barriers for the duration of the emergency. The new HHS order does not preempt state emergency orders that already permit equal or greater telehealth services by out of state providers.
This public health emergency has demonstrated the value of heretofore under‐utilized telehealth technology. It also provides a clear lesson on how state occupational licensing laws prevent the free flow of services to people in need.
Unfortunately, the state and federal emergency suspensions of barriers to telehealth are set to expire when this emergency ends.
States should enact permanent telehealth reform, permitting health care practitioners licensed in any of the other states and the District of Columbia to provide telehealth services across state lines, providing they follow state laws and regulations pertaining to health professionals. Idaho lawmakers are already considering such legislation. I testified before an Idaho joint legislative committee that is crafting the bill.
Action can also take place on the federal level. To the extent consistent with its authority to tear down barriers to interstate commerce under Article 1, Section 8 of the Constitution, Congress should define the “locus of care” as the state in which the practitioner is located as opposed to the state in which the consumer of the service resides. Whiles states have constitutional authority to regulate health care provision to residents within their borders, crossing state lines to provide telehealth services can reasonably be classified as interstate commerce.
State and federal lawmakers should absorb the lessons of this crisis and remove the regulatory barriers that deny patients access to the talent and expertise of health care providers across the country .