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Before the pandemic, telehealth was hamstrung by a patchwork of burdensome federal and state licensure and reimbursement limitations, resulting in a fragmented virtual care delivery system. However, the public health emergency necessitated a drastic and rapid adoption of telehealth across the country. To enable this, federal and state regulators were forced to issue a myriad of licensure, reimbursement, privacy and security waivers to lift the regulatory morass and enable the widespread delivery of care through telehealth that was critically important during the pandemic.

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As the public health emergency has ended and many of the waivers have expired, particularly at the state level, legislation and regulations have been adopted in many states and at the federal level to develop a more permanent solution that ensures ongoing access to telehealth. Given the hodgepodge of telehealth laws and regulations, we have compiled the following high-level summary of ongoing areas affecting the provision of telehealth care. Our dedicated telehealth team continuously monitors this ever-changing, fast-moving area of law.

State Laws and Licensure

State laws on telehealth are extremely varied from state to state, and many remain in flux, which continues to present potential roadblocks to the delivery of telehealth insofar as such laws restrict the ability of certain providers to practice telemedicine in the state where a patient is located, limit the types of treatment that are permissible via telehealth or impact ongoing reimbursement. The <a href="https://www.bakerlaw.com/us-telehealth-law-map/" target="_blank" rel="noreferrer noopener">BakerHostetler U.S. Interactive Telehealth Map</a> is intended to provide high-level insight into the rapidly changing and idiosyncratic nature of state telehealth laws. We remind healthcare providers, digital health companies and telehealth technology vendors to review the applicable state laws as they operationalize a telehealth compliance program.

Federal Waiver Extensions&nbsp;

While this map focuses on the regulatory regimes in the various states, it is important to be cognizant of the implications of federal laws and regulations in the telehealth industry. Formerly restrictive and onerous to comply with, the federal reimbursement structure for telehealth transformed during the pandemic after regulators recognized the numerous benefits of telehealth for improving care. As the government continues to work toward a more permanent solution, it has&nbsp;<a href="https://telehealth.hhs.gov/providers/telehealth-policy/policy-changes-after-the-covid-19-public-health-emergency" target="_blank" rel="noreferrer noopener">extended</a>&nbsp;various flexibilities to preserve the continuity of telehealth care, including loosening geographical restrictions for recipients’ care, permitting certain telehealth services via audio-only communications, removing in-person appointment requirements for some types of care, and allowing a range of provider types to continue to provide care via telehealth.

While the Office for Civil Rights (OCR) allowed for flexibility in the use of a variety of non-HIPAA-compliant telehealth technologies during the COVID-19 public health emergency, those flexibilities have expired. Complying with the privacy and security obligations of HIPAA is now a critical component in developing telehealth technology and partnering with a telehealth vendor as a business associate to deliver care.

Electronic Prescribing of Controlled Substances

In addition to state licensure laws, providers will also need to be particularly cognizant when prescribing controlled substances. While pandemic-era prescribing flexibilities have not been revoked by the Drug Enforcement Administration, they have yet to be made permanent and should be reviewed prior to issuing such prescriptions.

Reimbursement and Payment Parity

Payment parity allows providers to be paid at the same rate for providing telehealth care as if the care were provided in person. Though many states have shifted to permitting payment parity on a permanent basis, resulting in additional avenues for accessible patient care, many states did not make such changes. Thus, a thorough review of a particular state’s laws is required before providing telehealth in the state, to ensure the virtual care is reimbursable.

To avoid regulatory scrutiny and ensure the continuity of patient care, providers and digital health companies alike must stay abreast of the shifting regulatory environment at both the state and federal levels. Providers and digital health companies should take active steps to ensure their operations remain in compliance with current laws in this rapidly evolving landscape. BakerHostetler attorneys have prepared this&nbsp;<a href="https://www.bakerlaw.com/telehealth-laws-interactive-map" target="_blank" rel="noreferrer noopener">U.S. Interactive Telehealth Map</a>&nbsp;to provide healthcare industry stakeholders with a tool to navigate complex state telehealth laws.

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Janine Anthony Bowen

Vimala Devassy

Amy E. Fouts

Kimberly C. Gordy

Kyle R. Gregory

Andreas T. Kaltsounis

Melinda L. McLellan

Lynn Sessions

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