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

This is the third of a series of articles on states that are waiving some telehealth requirements in order to help patients get the medical care the patients need during the COVID-19 pandemic. The pandemic is forcing people to stay home as much as possible so as not to interact with people, including doctors and other patients, who might have contracted the disease. A complete list of states who are waiving some or all telemedicine requirements can be seen on the Federation of State Medical Board Websites.

The duration of these waivers or changes is generally through the end of the pandemic or the end of 2020. Some of the waivers that apply only through December 2020 may be extended – but healthcare providers should check with an experienced healthcare lawyer before using telehealth in 2021.

Illinois

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

• The Illinois Department of Financial and Professional Regulation “interprets Executive Order 2020-9 to permit an out-of-state health care provider not licensed in Illinois to continue to provide health care services to an Illinois patient via telehealth where there is a previously established provider/patient relationship.” The Department will consider that health care provider to be “authorized to practice in the State of Illinois” pursuant to Section 5 of the Executive Order without further need to obtain licensure in Illinois.”
• “Telehealth Services” during the pandemic, include the following types of care:
  • Health care,
  • Psychiatry
  • Mental health treatment
  • Substance use disorder treatment
  • Other patient-related services

The health services can be provided to the patient regardless of the location of the patient. The services can be provided through electronic or telephonic methods including Facetime, Google Hangouts, Facebook Messenger, Google Hangouts, or Skype.

• The amended rules provide that an originating site includes any site “that allows for the patient to use a communication or technology system as defined above.” An originating site, for example, will include “a patient’s place of residence located within the state of Illinois or other temporary location within or outside the state of Illinois.”
• During the pandemic, health insured can’t impose:
  • “Utilization review requirements
  • Prior authorization requirements for in-network providers providing Telehealth Services related to COVID-19
  • Cost-sharing obligations for telehealth services provided by in-network providers. Insurers are required to cover the expense of telehealth services ‘rendered by in-network providers for medically necessary covered services and May establish reasonable requirements and parameters for telehealth services.’”
• These provisions are active until the “end of Disaster Proclamation, for established patients only, currently scheduled for December 13, 2020, per 11/13 Declaration.”

Iowa

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

• To provide help to patients during the patients, Iowa provides that a doctor “may practice medicine/telemedicine in Iowa without an Iowa medical license on a temporary basis,” provided that the doctor “holds at least one active medical license in another United State jurisdiction, and all medical licenses held by a physician in other United States jurisdictions are in good standing, without restrictions or conditions.” Iowa further provides that “all rules which establish preconditions, limitations, or restrictions on the provision of telehealth or telemedicine services in Iowa are temporarily suspended…”
• Covid-19 Emergency Proclamation provides that the telemedicine laws that are suspended, “including the use of audio-only telephone transmissions, continue to be suspended.” The Iowa telemedicine “rules which require face-to-face interactions with health care providers, and impose requirements for residential and outpatient substance use disorder treatment and for face-to-face visitations, continue to be suspended.”
• These changes are effective through December 16, 2020, per the 12/9 Announcement.

Massachusetts

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

• “With the Governor declaring a State of Emergency, the Board of Registration in Medicine has established an Emergency Temporary License Application for out-of-state physicians” to help address the demand by patients for medical services in Massachusetts. In order to qualify for an Emergency Temporary License, a doctor must have an “active full, unlimited and unrestricted medical license in good standing in another U.S. state/territory/district.” There is not “good standing” if a license “has been revoked, canceled, surrendered, suspended, or is subject to disciplinary restrictions.”
• The requirement of a pre-existing relationship to use telemedicine is changed. “The new rule approved by the board makes it explicit that a doctor can treat a patient whom he or she has never seen in person as long as the physician considers it best for the patient during the health crisis.”
• The executive order by Governor Charlie Baker provides that “all commercial insurers, self-insured plans, and state health plans to cover all clinically appropriate telehealth services and at the same rate as in-person care.” The order states that all payers in the state “are required to allow all in-network providers to deliver clinically appropriate, medically necessary covered services to members via telehealth.”
• “Doctor on Demand has struck a deal with the state of Massachusetts to provide free telehealth visits to the state’s uninsured during the coronavirus pandemic.” Patients who are not insured or on Medicaid who have COVID-19 symptoms “or have been targeted as needing care as the result of contact tracing” are eligible to receive this telehealth service. The telehealth service will be available for free – 24/7.
• These changes are effective through 30 days after the latter of December 31, 2020, or when the State of Emergency ends. “Pursuant to COVID-19 Order No. 41, new Emergency Temporary License Applications for Out of State Physicians will not be accepted after July 10, 2020.”

Minnesota

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

• The state Executive Order, issued on April 25, 2020, provides that out-of-state healthcare professionals who are qualified can provide aid in Minnesota during the COIVD 19 peacetime emergency under the following conditions, among others that may apply:

• “Out-of-state healthcare professionals must have an active, relevant license, certificate, or other permit which is in good standing in that state or in the District of Columbia.
• “Before rendering any aid… [providers] must be engaged with a healthcare system or provider, such as a hospital, clinic, or other healthcare entity, in Minnesota.”
• “A [Minnesota] healthcare system or provider must verify that each out-of-state healthcare professional holds an active, relevant license, certificate, or other permit in good standing”
• Minnesota law provides: A physician licensed in another state can provide telemedicine services to a patient in Minnesota if:
  • “Their license has never been revoked or restricted in any state,
  • The physician agrees to not open an office in Minnesota, meet with patients in Minnesota, or receive calls in Minnesota from patients
  • They register with the state’s board.”
  • According to MN Stat. § 147.032, “these requirements do not apply in response to emergency medical conditions, the services are on an irregular or infrequent basis, or the physician provides interstate telemedicine services in consultation with a physician licensed in Minnesota”
• Pursuant to Minnesota law, MN Stat. § 147.033 “A physician-patient relationship may be established through telemedicine, and that physicians who provide services by telemedicine are held to the same standards of practice and conduct as apply to the provision of in-person services.”
• On April 6, Gov. Walz authorized, what appears to be a separate waiver for mental health professionals, permitting “out-of-state mental health providers to provide telehealth services to Minnesota patients.”
• There are additional Minnesota rules that apply to licensing involving Medicaid.
• Minnesota’s legislature passed a law that permits “the examination requirement for prescribing drugs to treat substance use disorder to be met if the prescribing practitioner performs a telemedicine examination.” This provision is time-limited and terminates 60 days after the peacetime emergency ends (Laws 2020, ch. 115, art. 2, § 30).
• Health care providers from out of state can only provide telemedicine services to Minnesota residents “during emergency situations per Minnesota Law § 147.032 (currently scheduled to expire January 13, 2021, per EO 20-100.)”

New Jersey

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

• There should be “increased access to telehealth under state Medicaid and direct third-party insurance administrators to inform beneficiaries about the availability of telemedicine and telehealth services.”
• An Administrative Order signed [August 11] by the Acting Director of the Division temporarily “waives certain regulatory requirements for in-person medical evaluations when providers prescribe controlled dangerous substances (“CDS”) in the treatment of chronic pain or authorize medical marijuana.” This order will stay effective “[until] the end of the state of emergency or public health emergency.”
• Gov. Murphy on July 1, 2020, signed a law that “ensures that out-of-state healthcare practitioners may continue to provide telemedicine to New Jersey residents until 90 days following the public health emergency.”
• New Jersey’s Division of Consumer Affairs last month adopted standards for many different types of health providers (including “audiologists, speech language pathologists, acupuncturists, physical therapists, psychologists, social workers, genetic counselors and nurses”) which will remain in effect during the pandemic.
• These changes are active until 90 days after the end of the COVID-19 emergency. The changes are currently set to end on December 22, 2020, per EO 200, which means the waiver will be open until the end of March 2021.

North Carolina

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

• “Any persons licensed in other states, territories, or the District of Columbia who are providing healthcare services under the authority of the first paragraph of section 16 of Executive Order No. 116 may continue to provide those services through April 15, 2020, unless otherwise authorized by a professional healthcare licensure board under the authority delegated in this Subsection.”
• During the State of Emergency: “(i) a health provider licensed, registered, or certified in good standing in another United States jurisdiction (or reinstated pursuant to emergency action) may apply for an emergency license with the appropriate North Carolina licensing board and, if deemed eligible to be licensed, may deliver services in North Carolina, including through any remote telecommunications technologies (telehealth), provided:
• Those services are within the provider’s authorized scope of practice in such other jurisdictions and
• Any restrictions under North Carolina state law restricting the use of telehealth… have their enforcement waived.”
• Blue Cross Blue Shield of North Carolina, the state’s largest insurance provider announced on March 17, 2020, that the company will “cover virtual visits that occur over the phone, as well as video, at the same rates as face-to-face visits.”
• These changes expire 30 days after the COVID-19 pandemic ends.

The COVID-19 crisis has caused most (but not all) US states to rethink when and how doctors and other healthcare providers can use telemedicine in-state and across state lines. These changes affect licensing requirements, face-to-face meeting requirements, insurance requirements, and other requirements.

Doctors, medical practices, and telehealth agencies should contact Cohen Healthcare Law Group, PC for legal advice on complying with telemedicine and telehealth laws during the COVID-19 health emergency. Our experienced healthcare attorneys understand how telemedicine is changing the doctor/patient relationship.