The social distancing measures required to address the COVID-19 pandemic led to a newfound appreciation for the use of telemedicine, a technological advance that has been available for several decades.1 Teleradiology, for example, which taps the skills of the world's experts in diagnostic imaging, has been in use since the beginning of this century.2 Telehealth finally began to receive the attention it deserves with the advent of the COVID-19 pandemic.
As emergency measures, most states' governors temporarily suspended the requirement that telehealth services can only be provided by practitioners licensed by their states. As a public health emergency measure, the Centers for Medicare and Medicaid Services, for the first time, began paying providers for telehealth services even if they were provided by practitioners licensed by states outside of the state in which the beneficiaries received care. CMS expanded on the list of telehealth services covered and made the policy permanent in December 2020.3
While expanding Medicare coverage of telehealth services, including services provided across state lines by providers licensed in other states is a step in the right direction, it doesn't address the major obstacle blocking all patients—Medicare and non-Medicare—from this great technological advance in 21st Century medicine: state licensing laws prohibit patients from receiving care from health care practitioners licensed out of state. While many states have temporarily suspended these laws for the duration of the public health emergency, the barriers will return to their status quo ante position when the emergency ends.4
Several states have already terminated emergency telehealth measures as the emergency recedes. For example, Johns Hopkins Medicine recently had to cancel appointments for 1,000 Virginia telehealth patients, informing them they can no longer provide telehealth services, after Virginia's emergency order expired.5
A return to the status quo ante means a person can travel from, say, Phoenix, Arizona to Los Angeles, California to consult with and receive care from a renowned expert in some unique medical condition, but cannot do telehealth follow up visits with that practitioner unless that practitioner obtains a license in Arizona. In other words, a patient may travel to a doctor, but the doctor may not travel to the patient. The fact that Medicare would pay the doctor for the out-of-state services does not help matters if the doctor is not allowed to provide the services.
Some states are not waiting for Congress to act. In May of this year Arizona's governor signed into law HB 2454, making it the first state to allow its patients to receive telehealth services from health care practitioners licensed in any of the other states and the District of Columbia.6 Out of state telehealth providers are subject to the laws governing the health care professions of the state of Arizona, as well as review and disciplinary action by the relevant professional licensing boards of the state of Arizona. They are required to show proof of malpractice insurance coverage. Liability cases will be heard in Arizona courts subject to Arizona liability law. In announcing his support of the legislation, Arizona Governor Doug Ducey stated:
A person who is visiting a family here or spends the winter here should be able to reach their doctor in their home state by telemedicine. A family in Mohave County who utilizes a hospital in Las Vegas, Nevada should be able to get follow up care via telemedicine. Today, someone who has the means to travel to a consultation with a specialist in another state can do so. Specialty doctors should not only be accessible via an expensive flight and hotel stay. If a specialty provider is willing to do a consult via telehealth, Arizona patients should have easy access to those services without unnecessary travel expenses and Arizona is going to lead the way. If it's safe and it works during a pandemic, we should embrace it when we're not in an emergency as well. (Emphasis added.)7
Well before the health care emergency developed, Florida's governor signed HB 23 into law, which similarly liberalized telehealth regulations.8 However, progress at the state level is slow and tedious, often opposed by the incumbent licensed health care professions presented with the prospect of out of state competition.
The Interstate Medical Licensure Compact does very little to mitigate the problem. Physicians must still obtain separate licenses in each compact member state in which they desire to treat patients. The IMLC merely offers a means to expedite the license application and approval process.9
While actions by the states to break down the barriers to telehealth are laudable, a state-by-state approach will take a great deal of time. And telehealth technology is ready to bring to patients now. Until state licensing obstacles are removed, the growth of this wonderful technology will remain stunted. And patients—not health care providers—will be the biggest losers.
Congress can act now to remedy the situation. To the extent consistent with its authority to tear down barriers to interstate commerce under Article 1, Section 8 of the Constitution, for the purposes of providing telehealth services and/or short-term in person care, 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. While states have constitutional authority to regulate the practice of medicine for residents within their borders, crossing state lines to provide telemedicine or short-term in-person care can reasonably be classified as interstate commerce.10
This change would increase access to care and allow patients to utilize expertise that may exist in areas of the country otherwise beyond their reach. It would also remove the protection from out-of-state competitors that health care providers otherwise enjoy. The increased competition would redound to the benefit of patients.
Congress can and should also apply this definition of the “locus of care” to practitioners licensed in one state who provide short-term in-person care in a state where they do not have a permanent location. Examples of providers to whom such an act would apply include those who usually work through agencies to provide care during short, temporary stints in medically underserved areas, those located very close to the border of a neighboring state, and out-of-state experts in rare and specialized medical conditions brought in to consult and help manage a fragile patient unstable for transfer. These examples are analogous to telemedicine practice.
Possessing an out-of-state license would not automatically enable a health care provider to practice at any health care facility within a new state. Health care facilities perform their own due diligence in vetting and credentialing health care staff applicants. The same vetting process could just as easily be performed on an applicant for staff privileges who is licensed in another state. That happens now when a provider relocates from another state after obtaining a license in the new state.
Defining the locus of care as the state in which a health care practitioner is licensed would make it easier for locum tenens (“fill in”) providers and out-of-state specialists to provide itinerant temporary health services to remote and underserved communities, free from the burden of licensing applications and fees in the several states where these communities reside. If a practitioner establishes an office within a state, the practitioner will then become subject to applicable state-based practitioner licensing laws.
The COVID-19 pandemic let the telehealth genie out of the bottle. This is telehealth's moment. Congress should take the steps necessary to let telehealth achieve its full potential, to the benefit of the nation's health care consumers.
I urge this Subcommittee to consider and craft legislation that breaks down the barriers to the free flow of telehealth, as well as short-term in person health care, across state lines.
Respectfully,
Jeffrey A. Singer, MD, FACS
Senior Fellow
Department of Health Policy Studies
Cato Institute
