Disappointing Results from Taskforce on Telehealth

Shirley Svorny

The report of the Taskforce on Telehealth Policy Findings and Recommendations was released September 15, 2020, accompanied by an online presentation. I had high hopes for the report and looked forward to its recommendations with interest. After all, it was led by some of the strongest supporters of telehealth: the Alliance for Connected Care and the American Telemedicine Association. They teamed up with the National Committee for Quality Assurance and solicited input from a diverse, knowledgeable set of individuals.

When it came a recommendation for practice across state lines—interstate telemedicine—we are left with a recommendation that says:

Policymakers should make permanent the following telehealth policy changes enacted during OVID-19 to improve access, patient safety and outcomes:… g. Allowing telehealth across states lines by considering strategies to expedite licensure reciprocity between states, while maintaining important patient protects and disciplinary tools for bad actors.” (p. 27–28)

That is unbelievably weak given the need, and it is not even clear what this means. It is hard to write a report that everyone can get behind. It is likely such compromises led to this watered‐​down language.

During the live online presentation, it was mentioned that a permanent lifting of bans to care across state lines would be “a state by state decision.” States may be unlikely act but Congress could use its power over interstate commerce to do so, a critical oversight.

The recommendation above is preceded by this explanation of the problem, but the report doesn’t address how to solve it.

Strict limits on providing telehealth across state lines that were waived during the pandemic also do not appear warranted. States have a patchwork of requirements for obtaining and maintaining a medical license that burdens physician and other health professionals and make it difficult for clinicians to practice telehealth in multiple states – even when those states are contiguous or share a metropolitan area.

Waiver of these restrictions allowed for additional surge capacity, dramatically lessened wait times for telehealth visits, and helped triage many conditions that might otherwise have resulted in unnecessary in‐​person care that put patients at risk. Outside of a pandemic, care across state lines can ensure access to care in places with clinician shortages, allow residents who travel for work or seasonally to maintain consistent doctor‐​patient relationships, and allow specialized care and expert consultations for those with serious conditions.

The Taskforce recruited comments at the beginning of the process. I wrote to the Taskforce members (much of this appeared in my recent article in Regulation):

As you know, given the investment, the convenience, and growing familiarity with telemedicine, telemedicine has a huge potential to improve access to care. But physicians are not allowed to offer telemedicine services to patients in other states without a license to practice in that state. This makes no sense as state medical professional licensing requirements are nearly identical.

…state laws define the site of care for a physician‐​patient interaction as the location of the patient. Physicians must secure and maintain multiple licenses to legally serve patients in other states.

As the American Academy of Allergy Asthma and Immunology put it prior to COVID-19, “…the lack of license portability still remains a barrier. [The Interstate Medical Licensure Compact] offers an expedited process for licensing board‐​certified physicians with no background issues. But physicians practicing in multiple states must adhere to a variety of state‐​specific medical practice regulations and there are annual license renewal fees for each state license.”

With the onset of the pandemic, eighteen states moved to allow physicians from other states to practice without requiring them to secure an in‐​state license (the waivers apply to out‐​of‐​state clinicians in good standing in their home states, generally for the duration of the pandemic). Almost all the remaining states have conditional waivers (physicians must register, or apply for a temporary permit, or have an association with an in‐​state provider). To accommodate these state waivers, the Centers for Medicare & Medicaid Services (CMS) temporarily dropped the requirement that out‐​of‐​state practitioners be licensed in the state where they are providing services.

The politics of the existing barriers are straightforward. Disorganized and disinterested voters have been no match for the hyper‐​organized physician and hospital lobbies. Local providers don’t want the added competition from out‐​of‐​state providers that might push prices down. Also, barriers to interstate telemedicine give local providers increased leverage in negotiating payments with health insurers.…[State] Medical boards generate revenues when physicians are forced to seek multiple licenses.

Congress holds the key. It can promote interstate telemedicine by establishing the site of care of a physician‐​patient interaction as that of the physician rather than that of the patient. Physicians would be allowed to provide care based on their home‐​state license to any patient across the country via telemedicine. Many patients already drive or fly to another state to get care. This would be no different.

Why not get the most out of investments in telemedicine and efforts to make the temporary COVID‐​19‐​related waivers permanent by eliminating licensing‐​related barriers to interstate telemedicine? I hope that your taskforce will address this issue and express its support for Congressional action to define the site of care as that of the physician.

Sadly, the Taskforce did not mention the failure of the Interstate Medical Licensure Compact to address license portability nor did it address Congressional action to define the site of care as that of the physician. Why not?