The rapid spread of COVID-19 has transitioned the telehealth debate from a matter of access, convenience, and cost-saving to a matter of absolute necessity on a large scale. A variety of barriers have traditionally stood in the way of broader adoption of telehealth including a lack of reimbursement by both state and private insurance, restrictions on prescribing across state lines, limitations to interstate malpractice coverage, and concerns related to privacy and security, licensure, credentialing, and privileging. Although CMS has temporarily alleviated some of the Medicare reimbursement limitations, the patchwork of state licensing regimes has been one of the most difficult barriers to overcome. This post highlights how some states have made temporary concessions with regard to their control over licensure in order to support patients during the COVID-19 pandemic. However, while these measures have helped, a uniform national mechanism for licensure for telehealth across state borders would be much more effective.

Licensure and Telehealth

Medical licensure in the United States is handled by states and the requirements can vary from state to state. Although there is some uniformity in the basic standards, many states require their own testing, interviews, background checks, and other steps to become licensed in that state. Initiatives such as the Interstate Medical Licensure Compact (IMLC) make it easier for providers to become licensed in multiple states, but the IMLC has not been adopted in every state, and the process for providers to take advantage of this reciprocity is not automatic. The licensing regime that applies to a particular encounter is typically based on the state of the “originating site” (i.e., the physician needs to be licensed in the state where the patient is located at the time of receiving the services). The limitations to the adoption of the IMLC and the originating site rule mean that it has been difficult for physicians to provide services across multiple states. There are various state-based exceptions that allow physicians to consult with out-of-state specialists on a limited basis, allow physicians from neighboring states to have their licenses recognized on a limited basis, or allow out-of-state physicians to provide certain types of telehealth services directly to patients, but the inconsistency of these exceptions creates risk and uncertainty for physicians and discourages broader use of telehealth.

Emergency Licensure and Licensure Waivers

Many state responses to the COVID-19 crisis have included the availability of temporary, emergency, or fast-tracked licensure or the temporary waiver of certain licensure requirements. Massachusetts has created an expedited “Emergency Temporary License Application” that allows physicians who hold “an active full, unlimited and unrestricted medical license in another U.S. state/territory/district” to obtain licensure, but only during the state declarations of emergency related to COVID-19. New York, has entirely waived NY licensure requirements for certain types of physicians, by allowing those who are “licensed and in current good standing in any state in the United States to practice in New York State without civil or criminal penalty related to lack of licensure.” Other requirements have also been waived by some states; for example, Delaware has waived the requirement that physicians see patients in-person before providing telehealth. These emergency measures not only allow physicians to travel to states where the need for medical professionals has sharply increased, it allows physicians to provide telehealth services to patients in those states where their ability to receive treatment in-person has significantly diminished.

A Unified Approach to Emergency Telehealth Licensure

Although individual state-based measures can help to increase the availability of physicians, a unified response would allow the healthcare community to be more responsive as the spread of COVID-19 effects different areas of the country at different times. One potential avenue for this is the Emergency Management Assistance Compact (EMAC). EMAC has been ratified by Congress and every U.S. state and territory, and it provides state emergency management agencies with broad powers to cooperatively respond to emergencies, including liability waivers, license reciprocity, and reimbursement for costs. The National Emergency Management Association supports the use of EMAC to implement uniform waivers to state licensure requirements for the provision of services via telehealth, and has released a form executive order that Governors can use to efficiently achieve this result. If adopted, this order includes a broad waiver of in-state licensure requirements for physicians who are licensed in another jurisdiction and allows them to provide any services they could provide in their home jurisdiction via any remote telecommunications technologies. Universal adoption of such an order would allow physicians to treat patients anywhere in the country via telehealth, and would facilitate the efficient implementation of nationwide telehealth networks.

Telehealth Licensure After COVID-19

Most of the measures discussed above apply only as long as the state emergency declarations continue. The same is true of the federal responses to the virus, such as the FCC’s COVID-19 Telehealth Program, which is part of the CARES Act and was discussed in an earlier post. Similarly, as also previously discussed, HHS is exercising enforcement discretion, having announced that it will not impose penalties for noncompliance with certain provisions of HIPAA, relating primarily to the security of transmission methods, in connection with the “good faith” provision of particular telehealth services during the COVID-19 nationwide public health emergency. Some of the current demand for telehealth is due to the fact that COVID-19 is so easily communicated via in-person interactions and the need for a national response to a pandemic that will peak at different times across the country. But the current crisis also highlights the access-to-care challenges the country faced before the crisis, and the hard lessons of the crisis response can create opportunities for the growth of nationwide telehealth services. As a significant number of new doctor-patient relationships are formed via telehealth, we may find that the benefits of this form of healthcare outweigh the concerns and argue for making some of these changes permanent, and support for this type of long-term change is already building.


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Photo of Nigel Howard Nigel Howard

Nigel Howard’s practice focuses on technology, outsourcing, and intellectual property issues. He represents clients in complex technology transactions, including outsourcing, licensing, corporate partnering, and strategic alliance transactions. Mr. Howard also has experience representing clients during IP property purchases and sales, and in reviews…

Nigel Howard’s practice focuses on technology, outsourcing, and intellectual property issues. He represents clients in complex technology transactions, including outsourcing, licensing, corporate partnering, and strategic alliance transactions. Mr. Howard also has experience representing clients during IP property purchases and sales, and in reviews of IP portfolios in relation to corporate financing and merger and acquisition transactions. His experience includes cross-border technology transfers, development and testing arrangements, distribution channels, technology deployment, and electronic commerce as well as privacy laws with regard to electronic databases and online services.