A silver lining to the COVID-19 pandemic has been the permission given to health care providers to render medical services and telemedicine across state lines. Several states as well as the Centers for Medicaid and Medicare Services (CMS) temporarily waived requirements for licensure in the state where the patient is located. (See here for more information.) With the tremendous expansion of telehealth due to the pandemic, maintaining and continuing growth of service delivery via telehealth will necessitate permanent changes in the law.
State Control of Licensing Across State Lines
Traditionally, beginning in the 1800s and growing substantially in the 1950s, states have had the authority to license healthcare professionals. States have a vested interest in maintaining that authority because it allows them to exert control over the quality of care given to their citizens by setting standards including the passing of a licensing exam. They respond to citizen complaints and increasingly in some states, coordinate efforts with other professional boards in the same state. States also have been responsible for keeping out “bad apples,” shouldering the cost of providing disciplinary action and following up with corrective interventions when needed.
As noted by Dr. Ateev Mehrotra of Harvard Medical School and Beth Israel Deaconess Medical Center in Boston and two colleagues, Alok Nimgaonkar, B.A., and Barak Richman, J.D., Ph.D., in an article in the New England Journal of Medicine, Telemedicine and Medical Licensure— Potential Paths for Reform, maintaining the expanded use of telehealth post-pandemic will require permanent rather than the temporary licensure reform that now exists due to COVID-19. Per Dr. Mehrota et al, “… the growth of large national and regional health systems and the increased use of telemedicine have expanded the scope of healthcare markets and telemedicine across state lines.” A similar movement to reduce the barriers to telehealth practice across state lines is evident in many professions beyond medicine.
These same issues are of relevance to all healthcare professionals, including psychologists, social workers, counselors, MFTs, behavior analysts, speech therapists, occupational therapists, physical therapists, nurses, and nurse practitioners to name a few. For more an earlier summary of COVID’s impact on interjurisdictional issues in other professions, see TBHI’s
Interjurisdictional Telehealth Legislative Action
The issue of interjurisdictional practice across state and international borders is such a hot topic in telehealth that it is front-and-center in several legislative bills currently being argued at both the state and federal levels.
For current updates regarding telehealth legislative actions related to practicing telehealth across state lines, see these TBHI articles:
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A Federal License to Practice Telemedicine and Telepsychology Across State Lines
The federal government has the power to enact laws to prevent practices that limit interstate commerce. Another option would be to have the federal government set up a second, parallel licensing route which would allow healthcare professionals to be licensed to practice nationally, across state lines, in addition to being licensed by their state. However, this could complicate states’ ability to provide disciplinary action when needed.
Physicians: The Interstate Licensure Compact
A seemingly viable solution to physician interstate licensing is the Interstate Medical Licensure Compact introduced by the Federation of State Medical Boards (FSMB). It is an agreement that has grown to include 28 states and Guam that facilitates the acquisition of additional state licenses. It, however, has not been widely used, with only 0.4% of physicians in the participating states utilizing it. One proposed suggestion is for the federal government to pass legislation to encourage the remaining states to join the compact – a move that would lessen administrative burdens and fees for physicians, as well as provide improved advertising. For more information see here.
Psychologists: The Psychology PSYPACT
For psychologists, the Association of State and Provincial Psychology Boards (AASPB) has made significant inroads with legalizing interjurisdictional practice for psychologists with PsyPACT. See this TBHI article for more information about PsyPACT:
Nurses: The Enhanced Nurse Licensure Compact
The enhanced Nurse Licensure Compact (NLC) allows for registered nurses (RNs) and licensed practical/vocational nurses (LPN/VNs) to have a multi-state license, with the privilege to practice in their home state and other NLC states. With 25 member states in the NLC, nurses in member states are allowed to practice telehealth across the country without having to obtain additional licenses. For details of the NLC, see this summary. For more information about the enhanced NLC, visit this website.
Counselors: Licensed Mental Health Counselor Portability Intiviatives
Counselor interjurisdictional initiates have been led by the American Mental Health Counselor Association (AMCHA) Interstate Portability Task Force. They have published a position paper on portability to identify their view of the best features of several portability proposals that have recently developed. Details can be found here on the AMCHA website.
Using Medicare to Lead By Example
It doesn’t seem likely that states would willingly give up their control of the licensing process. Dr. Mehrotra proposes an option in which the federal government could “encourage reciprocity under which states automatically recognize an out-of-state license” by instituting the change in the Medicare program, as is already the case in the VA health system (see here). Following that lead, states would potentially adopt state legislation regarding reciprocity, which would also benefit patients with private payers and other types of insurance.
The pandemic has led to the tremendous expansion in the availability of healthcare via telehealth to millions of Americans, in part by removing federal and state licensure restrictions. Those temporary changes to telemedicine across state lines need to be made permanent in order for telehealth to continue to expand and to be a viable way to improve the quality and availability of healthcare for all Americans.
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How Can I Legally Practice Over State Lines and International Borders?
Whether you want the skinny on where to go to get the information you need, what to do, and how to document your activities, this highly interactive program is designed to answer your questions. Taught by three leading telehealth thought leaders, this program will invite you to cut through the red tape, learn exactly what to do regardless of your profession or specialty area. You will be given the rules of the road, how they can legally and ethically be modified; who needs to know what; how and when they need to know it; the key documents you’ll want to have at your fingertips; and how to get them for free whenever you need them. This highly interactive program is designed to include the audience in a discussion to help you get what you need quickly and efficiently. It will involve case-based learning in the form of real-life consultation notes reflecting appropriate investigation into the inter-jurisdictional practice. This outline will be provided to give you a quick guide for your own investigation of practicing telehealth over state lines or international borders and its documentation.
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