Additional State Telehealth Waivers During the COVID-19 Pandemic. Part Two.

We’ve already discussed how states and CMS are permitting some waivers of laws and regulations to help patients and doctors connect through telemedicine. In addition to Arizona, California, and Hawaii, many more states that have telemedicine waivers of suspensions include the following states. A full list of state waivers and adjustments to COVID-19 can be viewed on the Federation of State Medical Board Websites.

Alaska

The approved telehealth and related changes during the COVID-19 pandemic for Alaska are:

• Gov. Dunleavy, on April 10, 2020, signed SB 241, which says, in part, “… during the public health disaster emergency declared by the governor… on March 11, 2020… [Alaska Statutes] do not apply to a health care provider who is providing treatment; rendering a diagnosis; or prescribing, dispensing, or administering a prescription, excluding a controlled substance… through an audio-visual, real-time, two-way interactive communication system, without first conducting an in-person physical examination” provided that the health care provider has a proper license, certification, or permission to provide health care services in another jurisdiction and provided that health care provider is in good standing in that jurisdiction. [Emphasis provided]
• During the length of time the public health emergency remains is in effect, “DEA-registered practitioners may issue prescriptions for controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:”

• • “The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice”
  • “The telehealth session uses an audio-visual, real-time, two-way interactive communication system.”
  • “The practitioner is complying with the relevant state and federal laws.”
• Re: opioid use disorder treatment – On May 7, 2020, the State Medical Board adopted, as emergency regulations, changes in 12 AAC 40, to allow a physician or PA to examine, diagnose and treat a patient for an opioid use disorder without a healthcare provider present with the patient, during a public health emergency disaster declared by the governor.
• These provisions remain active until the Alaska State of Emergency ends – which is “currently scheduled to expire January 15, 2021, per 12/10 announcement.”

Florida

The approved telehealth and related changes during the COVID-19 pandemic for Florida are:

• Florida’s Surgeon General issued an Emergency Order on March 16, 2020. The EO permits “certain out-of-state health care professionals to temporarily provide telehealth services to persons in Florida in order to prepare for, respond to, or mitigate the effects of COVID-19.” The EO also permits “certain Florida licensed physicians to use telehealth services instead of in-person examinations in limited circumstances.”
• Health care providers who are not licensed in Florida, in order to prepare for, respond to, and mitigate the effects of COVID-19 “may provide health care services to a patient in this state using telehealth… for a period not to exceed 30 days unless extended by order of the State Surgeon General.” “In addition to the allowed professions under Department of Health Emergency Order 20-002, this exemption shall apply to the following out of state health care professionals holding a valid, clear, and unrestricted license in another state or territory in the United States” – provided the health providers are not being investigated or prosecuted for any disciplinary actions in the state where the providers have their license:
  • “Physicians, osteopathic physicians, PAs, and APRNs licensed in Florida… designated… as a controlled substance prescribing practitioner… may issue a renewal prescription for a controlled substance listed as Schedule II, Schedule III, or Schedule IV… only for an existing patient for the purpose of treating chronic nonmalignant pain without the need to conduct a physical examination of the patient. These healthcare providers ‘may only substitute telehealth services for the physical examination.’”
• Florida passed a law in 2019 that authorizes “out-of-state health care practitioners to perform telehealth services for patients in Florida.” This law became effective on July 1, 2019.
  • “Florida Law § 2019-137: (a) A health care professional not licensed in this state may provide health care services to a patient located in this state using telehealth if the health care professional registers with the applicable board, or the department if there is no board, and provides health care services within the applicable scope of practice established by Florida law or rule.”
• Status. Medical professionals from another state “can provide telemedicine services to Florida residents if they are registered with the Medical Board per Florida Law § 2019-137.”

Kansas

The approved telehealth and related changes during the COVID-19 pandemic for Kansas are:

• On March 19, 2020, Governor Laura Kelly announced that she had issued executive orders to expand the use of telemedicine, among other waivers. “Out-of-state doctors may provide telemedicine services in Kansas if they are licensed in another state, provided the physician holds an unrestricted license and is in good standing. All physicians are encouraged to utilize telemedicine, including those under self-quarantine.”
• Each doctor who treats patients using telemedicine shall “conduct an appropriate assessment and evaluation of the patient’s current condition and document the appropriate medical indication for any prescription issued.”
• Kansas also provides, during the pandemic, that A physician may issue a prescription for or order the administration of medication, including a controlled substance, for a patient without conducting an in-person examination of such patient. (b) A physician under quarantine, including self-imposed quarantine, may practice telemedicine.
• In order for a physician who has an out-of-state license (applicable for practicing medicine) to practice telemedicine to treat patients located in the state of Kansas, the out-of-state physician must:

1. 1. “Advise the state board of healing arts of such practice in writing and in a manner determined by the state board of healing arts; and
   2. Holds an unrestricted license to practice medicine and surgery in the other state and is not the subject of any investigation or disciplinary action by the applicable licensing agency…”

• Status. These provisions are active until Kansas State of Emergency ends, “which is currently scheduled to expire January 26, 2021, per EO 20-64. (HB 2016 clarifies that emergency licenses can be granted until January 26, 2021).”

Kentucky

The approved telehealth and related changes during the COVID-19 pandemic for Kentucky are:

• (Broad provision in Executive Order). Pursuant to the state of emergency declared by Governor Beshear, “Medical and Osteopathic physicians not already licensed to practice in the Commonwealth of Kentucky may register to practice within Kentucky during the state of emergency”
• [KY SB 150] “waives requirements of in-person examination for establishing a provider-patient relationship for the purposes of providing telehealth (to the extent this complies with federal law).” This law “also gives the Kentucky Board of Medical Licensure, the Kentucky Board of Emergency Medical Services, and the Board of Nursing the ability to waive or modify state statutes and regulations: … (f) For standards that are not necessary for the applicable standards of care to establish a patient-provider relationship, diagnose, and deliver treatment recommendations utilizing telehealth technologies.”
• The Federation of State Medical Board write-up also makes provisions for waivers involving out of state Medicaid providers.
• The provisions will remain active the Kentucky State of Emergency ends.

Michigan

The approved telehealth and related changes during the COVID-19 pandemic for Michigan are:

• Michigan law provides that in some circumstances and some cases, “The following individuals are not required to have a license issued under this article for practice of a health profession in this state: (c) An individual who by education, training, or experience substantially meets the requirements of this article for licensure while rendering medical care in a time of disaster…” (MCL § 333.16171). This provision does not require an individual to apply for or be granted an exemption by the Department.”
• Michigan Governor Whitmer is calling on health plans to “encourage the use of telehealth and ordered the state Medicaid program to include the home as a telehealth site.”
• According to [EO 2020-86] medical providers are authorized and encouraged to use telehealth services when medically appropriate and upon obtaining patient consent. To facilitate the provision of telehealth services:

1. 1. “Written consent for treatment is not required. A health care provider may obtain verbal consent…
   2. Health care providers engaging in telehealth services may use asynchronous store- and-forward technology for the transmission of medical information…
   3. Remote patient monitoring, which may or may not take place in real-time, may be conducted as part of telehealth services…
   4. A physician is not required to conduct an in-person examination before prescribing medication or ordering the administration of medication, including controlled substances except for methadone…”

• Practitioners should note – According to the Federation of State Medical Board Websites, out-of-state practice privileges were rescinded per EO 2020-150.

New York

The approved telehealth and related changes during the COVID-19 pandemic for New York are:

• New York, according to the Federation of State Medical Board Websites link, is encouraging doctors from other states who are licensed and in current good standing to practice medicine in New York “without civil or criminal penalty related to lack of licensure or registration.”
• Section 596 of Title 14 of the NYCRR provides that “to the extent necessary to allow for rapid approval of the use of the telemental health services, including the requirements for in-person initial assessment prior to the delivery of telemental health services, limitations on who can deliver telemental health services, requirements for who must be present while telemental health services are delivered, and a recipient’s right to refuse telemental health services.”
• The New York Department of Financial Services “will require insurance companies to waive copays for telehealth visits related to Covid-19.”
• New York is encouraging the continued telehealth use. Health care providers “should continue to use telephone, telehealth, and electronic communications as much as is feasible and limit in-person visits to essential medical services that cannot be provided remotely.” Health providers should help patients balance the benefits of in-person medical care with the dangers of leaving home – especially “for patients who have urgent medical needs but are reluctant to seek care due to fear of COVID-19.”
• Gov. Cuomo, in July, signed a Senate Bill “which added audio only forms of telehealth (e.g. telephone) to the state’s definition of telehealth and telemedicine.”
• These provisions are “currently scheduled to expire January 1, 2021, per EO 202.79.”

Due to the COVID-19 crisis, many states are encouraging patients to stay home and to consult with their doctors and medical providers by using telehealth services. This encouragement includes executive orders and laws that may waive, while the pandemic is active, certain licensing requirements for out-of-state physicians. In addition, the requirement to treat patients in-person before using telehealth services may be waived in some states too.

Physicians, medical practices, and telehealth agencies should contact Cohen Healthcare Law Group, PC for legal advice on telehealth compliance issues during the COVID-19 health emergency. Our experienced healthcare attorneys explain which telehealth laws apply, which ones have been waived or suspended, and the timing of these changes.