We have seen an increase in regulatory activity relating to alleged violations of practicing without an appropriate state license. Some of this may be attributed to confusion that arose as a result of telehealth flexibilities authorized by the Department of Health and Human Services (“HHS”) during the COVID-19 Public Health Emergency (“PHE”). During the COVID-19 Emergency HHS took a range of administrative steps to expedite the use telehealth and increased access to practitioners. Some of the telehealth initiatives have been made permanent while others are temporary. In addition, many states made revisions to their regulatory scheme so as to allow greater access to health care services by permitting practitioners licensed in other states to provide health care services either directly in their states or via telehealth. Many of these regulatory provisions were not made permanent, and many have expired.
First, one should be aware that the fact that HHS permitted out-of-state practitioners to bill for telehealth services provided in states where the practitioner did not hold an active license, did not change an individual state’s requirements for licensure. Generally, the Medicare program will only pay for services rendered by practitioners licensed in the state where the patient resides or is present at the time that the service is provided. During the COVID-19 PHE, the Medicare program lifted this geographic restriction. However, state licensure requirements must still be met.
Some of the Medicare changes have become permanent. For example, Medicare patients can receive telehealth services for behavioral/mental health, without geographic restriction. Temporary Medicare changes effective through December 31, 2024, removed geographic restrictions for non-behavioral/mental health telehealth services. Temporary Medicare changes allowing telehealth services to be provided by a physical therapist, an occupational therapist, speech language pathologist, or audiologist expire on December 31, 2024. A suspension of federal penalties when communications to patients via telehealth do not meet compliance requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) will expire at the end of the COVID-19 PHE.
Practitioners, including mental health practitioners, should check each and every state where a patient resides or receives services to determine whether that state permits telehealth or other services by practitioners not licensed in the patient’s home state or location. A failure to do so puts the practitioners at risk of sanctions. Most commercial telehealth platforms place compliance obligations on the individual practitioner. In addition, practitioners must meet record keeping and standard of care obligations in the state of the patient’s location or residence.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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