Practicing Telehealth Across State Lines: Spring 2023 Update

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HERE IS HOW

Practitioners of all healthcare professions will be impacted by the upcoming end of the public health emergency (PHE). Behavioral health professionals stand out as the biggest winners, with more recent legislative action in their favor than any other professional group, particularly with regard to practicing telehealth and telemedicine across state lines. This article answers common questions and summarizes some of the key legal issues involved.

As the end of the PHE is less than six weeks away, Telehealth.org consulting clients and webinar participants have repeatedly asked several questions. They include the following:

1. If my client has a residence in my state of licensure, is it still going to be ok for me to work with them after the end of the COVID public health emergency?

This issue with your client or patient’s residence is a red herring. Whether or not someone resides in your state of licensure doesn’t count if they are in another state at the time of your meeting. Healthcare licensing requirements follow the client or patient. When they go to another state, you must comply with all the laws of the state they have entered.1

Also, many providers were misinformed about practicing over state lines during the COVID pandemic’s public health emergency (PHE). It was not legal to practice telemedicine or telehealth over state lines during COVID without being registered where the client or patient was located at the time of contact. 

Most states issued proper procedures to practice telehealth over state lines but lacked the resources to enforce existing laws if providers didn’t comply. Now that the pandemic’s PHE is coming to an end, we can expect more enforcement. Now is when failure to obtain the proper training can hurt you significantly. Read below to get the details.

2. If I practice telehealth across state lines, will my Medicare clients be required to travel to see me if I seek reimbursement for my services?

Maybe yes, and maybe no. While it is true that an in-person visit requirement has been put on the books by HR 2617, the requirement is scheduled to start almost two years from now, on January 1, 2025. The delay will allow lawmakers to gather the evidence needed to collect the results of several large-scale studies funded by recent legislation, collect provider comments, and debate the issues. Your voice to your elected officials can make a difference. Write a letter today and send it to all your state officials.

3. If I practice telehealth across state lines, will my private payer clients be required to travel to see me get reimbursed for my services?

Private, otherwise known as commercial payers, can differ from state to state, company to company, and policy to policy. For a definitive answer, write to each payer and ask for clarification of their in-person requirements, their approved telehealth-related CPT codes, modifiers, rates for each approved code, and any limitations for telehealth.

Be aware that most private payers have specific rules about paying for services delivered to clients over state lines at the time of the service, but that is a separate issue and not the same as licensure. 

Be clear about what you are asking – and of whom. Here are some important distinctions: 1) Do you want information about payment for services rendered for a client who is vacationing, temporarily living with a family member, away at school, or on a temporary job assignment? That is a billing question, and the states won’t give you an answer. 2) If you want to know whether it is legal to deliver services, that is a licensing issue.

Relying on your colleagues to give you the right answers may not be a good idea. Many professionals are quite confused. While the reimbursement and practicing over state lines issues are intertwined, they are separate. Confusing them when asking questions of the wrong party can leave you without the needed answer.

4. Are telephone-only services going to be paid after the PHE for clients over state lines?

Again, coverage for telephone-only services depends on the payer, but in general, you cannot legally get paid for providing misinformation (lying) on your HCF-1500 or any other billing form. This is true even when using the correct telephone modifier code and completing all other billing requirements.

Three points are important in this regard: 1) To bill properly, your clients and patients must be in areas where you are licensed to practice. 2) When you sign the form or engage a billing service to use your signature on a billing document of any type, you are legally attesting that you understand your billing as coded and that it is correct. If it is knowingly incorrect, as when you practice telehealth over state lines without a license for each session billed, you may be committing insurance fraud. Remember, ignorance of these issues is not a defense in the eyes of the law or your licensing board. 3) Fraudulent billing is only one of the many liabilities you can incur when providing telehealth across state lines without a license. Read the questions below for more details.

5. Aren’t some behavioral professions working to get “model acts” signed by their governors to change state laws in specific states for their professions?

Yes, some professions have made significant progress, while others are just getting started with interjurisdictional “model acts.” It is important to note that no profession’s model act (aka “compact”) has been approved by all states. In other words, participating in an approved compact does not mean you can practice anywhere you wish with your current licensure. The other issue to consider when wishing and hoping for nationwide licensure is that even for those professions that have been in operation for several years (nurses, physicians, or psychologists), there is still a long way to go. The states who have held out to this point have most likely dug in their heels. Something significant will be required to change their minds.

Lastly, not all compacts share full licensure. The nurse compact, the oldest of all, is one where holding a license in one compact-approved state allows an approved clinician to work in another nurse compact state. The same is largely true for psychologists, with a few exceptions. Physicians, on the other hand, only share documentation and not full licensure in other compact states. 

If your profession is developing a licensure compact, you may want to write to them to get information.

The following professionals have model acts or compacts underway and at various stages of development:

• • Physicians
  • Psychologists
  • Social Workers
  • Counselors
  • Nurses
  • Marriage and Family Therapists

6. If I am prescribing buprenorphine or another controlled substance over state lines, is that a problem? 

The Department of Drug Enforcement just recently issued a decision about prescribing controlled substances across state lines. They will require an in-person visit for patients within your state(s) of licensure, but they default to state law as defined by the licensing boards on the issue of practicing across state lines. In short, no, you will not be allowed to practice in areas that are legally outside your licensure. See DEA Proposes New Rules for Telehealth Prescriptions and note the comment period for sending your comments directly to the DEA electronically through the Federal Register is before 11:59 PM ET on Friday, March 31.

7. What is the worst that can happen if I practice over state lines? Besides, if my client (patient) and I are ok with it, who can possibly know?

In short, ethical issues aside for the sake of brevity, practicing telehealth or telemedicine across state lines is illegal, and your malpractice insurance might not cover you if anything goes wrong. Below, I explain why and outline several facts for you to consider.

First, practicing over state lines can often carry a fine at the board level. Like other illegal activities, it especially becomes an issue if you get caught. While chances of getting caught are slim, they exist and can be especially difficult. More specifically, practicing telehealth across state lines without a local license can become a legal issue in a foreign state and, depending on your original state of licensure, perhaps in your home state. Will your malpractice carrier cover you in either case? Read on…

• You may assume that you know your clients and that they would never bring you up on regulatory or civil charges. In most cases, you will undoubtedly be correct.
• Then again, consider how often a client or patient turned against you, accusing you of wrongdoing without adequate justification (in your mind). Not only clients but families of clients can get involved. The in-person attacks may be difficult enough to withstand, but those attacks can be disseminated through professional rating websites, social media, blogs, and other forms of public Internet discourse. Not only can such attempts to discredit you be emotionally challenging, but your inability to respond in any way to such open attacks are severely restricted by HIPAA laws.
• Then, of course, the price to be paid for a regulatory or civil suit can be staggering. They often require years to mount a legal defense, but if they involve the fact that neglectfully or intentionally practiced telehealth or telemedicine across state lines without a license, you may need an expensive attorney. At that point, you will probably look to your malpractice carrier. 

Buyer Beware: Malpractice Carriers

• Some malpractice carriers will be hard-pressed to defend your actions if you intentionally, or by omission, and with inadequate documentation about the client’s geographic location at the time of the contact, practiced illegally. In short, you may have violated the terms of your malpractice policy.
• Most insurance policies are written with a clause that clearly, albeit in very small font, says that you will not be covered if you knowingly practice illegally. The language may be couched in terms such as “criminal intent.” Write to your carrier and ask for the full details of your “civil and regulatory coverage” if you knowingly practice illegally over state lines. If you are hesitant to ask them about such coverage, consider why.
• Be aware that not all malpractice carriers are up-front about the limits of your coverage. Some intentionally hide in the shadows, openly telling you they provide coverage for telehealth, but in small font on their policies, limit coverage to regulatory suits. When you write to them for clarification, they offer generic, non-specific answers. Such answers might read: “We provide telehealth coverage for everything you do in your regular, in-person practice.” Hidden is the fact that you don’t practice telehealth across state lines from your regular, in-person practice.
• Buyer beware. Not all insurers are ethical. Ask specific questions, and don’t settle for vague answers. There are reputable malpractice carriers who do an outstanding job of protecting telehealth providers.

In conclusion, practicing telehealth across state lines can be accomplished legally and responsibly, but it will take more effort after the end of the pandemic. Learn to separate your questions into two camps (licensure and reimbursement) to get the right answers. For more accurate information about practicing telehealth or telemedicine across state lines or optimizing reimbursement for telehealth practice, consider getting appropriate professional training before you proceed. Practicing telehealth in multiple states is possible, but the devil is in the details. However, clear answers are immediately available. 

_{¹ (If you are unaware of the laws, you need to be – and please don’t shoot the messenger. I have been railing against licensure law for 30 years. I’m just providing the facts for you to verify before taking undue risks.)}

²_{See any of my five telehealth textbooks on Amazon if you want much more about this issue, or take a quick course and get to the point in less time.}

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