Now is the time for providers to be proactive about telehealth

The waivers on some virtual care restrictions are likely to be lifted in the near future – but providers have some options.
A telehealth consultation

You've probably heard this one before: A major contributor to the telehealth explosion over the last year has been the decision to waive various restrictions on virtual care.  

But the future of those regulations remains murky – and with it, the continued widespread availability of telehealth.   

"It's unclear when those waivers will go away, and it's unclear what will be permanent and what won't be," said Heather Alleva, leading health systems and hospitals attorney at Buchanan, Ingersoll & Rooney, in an interview with Healthcare IT News.  

Alleva does have a few predictions, however. She believes HIPAA requirements for telehealth platforms will likely go back into effect, though the Office of Civil Rights is considering some changes.   

And some states may join interstate compacts that make it easier for providers to practice in different regions, but Alleva says some form of state-specific licensure will almost certainly be reinstated.  

"There's a concern that they want to make sure consumers and patients in their state are being served by people they've vetted," Alleva explains.  

This could make it difficult for providers in places like Chicago, whose patients may live over state lines.

"Even if you don't have a physical location, you need to be thinking about where you're providing services."

Heather Alleva, Buchanan, Ingersoll & Rooney

Hypothetically speaking, said Alleva, "if you have a physician who is only licensed in Illinois, and they provide unlicensed care to a patient in Indiana via telehealth, [a patient] could sue both the physician and the physician's employer for providing unlicensed care."

For providers who see the value in making telehealth broadly available in the future, Alleva poses a few options.

"They can start to be proactive," she said. "They can monitor what their states are doing and thinking, and make sure providers get licensure in other states" if needed.   

Another issue, she says, appears in the form of laws around the corporate practice of medicine. Some states require corporations that employ providers to register as a foreign corporation or as a corporation in the state where services are being provided.   

Although the pandemic means "no one's really thinking about that right now," she said, those rules are in place – and being unprepared can lead to trouble down the line.   

"Even if you don't have a physical location, you need to be thinking about where you're providing services," she said.  

Alleva said she could potentially see some states making exceptions to restrictions for app-only providers, or for those that only provide certain medications that are sometimes hard to access, like birth control.  

"I could certainly see some states having evaluated what's beneficial and … finding things like these kinds of apps to be beneficial, and making exceptions for them," she said.   

Still, Alleva says changes will likely follow state and federal analysis about potential overutilization and accessibility of care.  

"Be ready to button up as we wait to see what happens," she said.

Kat Jercich is senior editor of Healthcare IT News.
Twitter: @kjercich
Email: kjercich@himss.org
Healthcare IT News is a HIMSS Media publication.

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