Avoiding Confusion Over State Licensing Laws as CMS Further Loosens Telemedicine Restrictions

Posted In Telehealth

The Centers for Medicare & Medicaid Services (CMS) continues to loosen the conditions for participation in Medicare, as well as specific reimbursement requirements, to ensure facilities and practitioners are able to practice at the top of their license and across state lines without jeopardizing Medicare reimbursement. Unfortunately, as demonstrated when CMS took similar actions over the past few weeks in response to the Coronavirus (COVID-19) pandemic, headlines tend to overlook one fundamental component of the applicable regulatory regime: state law requirements.

Unlike the Veterans Affairs Administration’s (VA’s) action a few years ago, which preempted state licensing law for purposes of implementing a VA telemedicine program, the Department of Health and Human Services has limited its actions during the COVID-19 pandemic to modifications of federal regulations and rules.  Secretary Alex Azar, in a letter to the Governors, instead encouraged the states to take action themselves to similarly loosen state laws to ensure maximum utilization of resources.  The states have been doing so, in some instances since early March, with different approaches. These differences stem from a large number of variables that are implicated by state licensure laws.

Key Takeaways: The practical implication for the provider community is that new standards for Medicare need to be adopted in harmony with existing state laws requirements, which, unfortunately, are not uniform across the country.  Nevertheless, nearly every state has taken action to loosen cross-border licensing restrictions for healthcare professionals and have modified other rules and regulations to help protect healthcare workers, maximize their numbers and help them practice at the highest level of their experience and training.  There is a national movement in this direction, but it remains a patchwork.

For a deeper dive into telemedicine regulations during the COVID-19 pandemic, visit our Coronavirus Resource Center, which features articles, webinar recordings and videos on the telemedicine issues you need to know.

Lisa MazurLisa Mazur
Lisa Mazur advises health care providers and technology companies on a variety of legal, regulatory and compliance matters with a particular focus on digital health topics, including telehealth, telemedicine, mobile health and consumer wellness. Lisa advises a variety of health care providers and technology companies involved in “digital health,” including assisting clients in developing and implementing telemedicine programs by advising on issues related to professional licensure, scope of practice, informed consent, prescribing and reimbursement. Lisa helps clients identify and understand the relevant legal issues, and develop and implement practical, forward-thinking solutions and strategies that meet the complex and still-evolving digital health regulatory landscape.  Read Lisa Mazur's full bio.


Dawn R. HelakDawn R. Helak
Dawn R. Helak provides counseling and advice to hospitals and health systems, academic medical centers (AMCs), private equity firms and their portfolio companies, post/sub-acute providers, trade associations and coalitions, physician practices, and other public and private health care companies in a variety of complex transactions and health regulatory compliance matters. Read Dawn Helak's full bio.


Dale C. Van DemarkDale C. Van Demark
  Dale C. Van Demark advises clients in the health industry on strategic transactions and the evolution of health care delivery models. He has extensive experience in health system affiliations and joint venture transactions. Dale also provides counseling on the development of technology in health care delivery, with a particular emphasis on telemedicine. Dale has been at the forefront of advising clients with respect to the globalization of the US health care industry. He advises US and non-US enterprises with respect to the formation of cross-border affiliations and international patient programs. In addition to writing regularly on matters related to his practice, Dale has spoken at numerous conferences around the world on the globalization of health care. Read Dale Van Demark's full bio.


Rachel StaufferRachel Stauffer
Rachel is a highly experienced government relations and legislative affairs strategist and advocate who is informed by a solid foundation of health policy knowledge. Prior to joining McDermottPlus, Rachel served as the director of policy and government relations for a health IT contractor, where she developed the company’s first strategic plan for government relations. She grew the company’s profile on Capitol Hill by establishing new relationships with key leaders in the federal, state and military health program space. As a result, the company became an authoritative source on a variety of legislative approaches, especially related to veterans’ health.

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