As states roll back emergency provisions that allowed out-of-state providers to offer telehealth services during the COVID 19 pandemic, more permanent changes in interstate telehealth are under way. In April 2022, the Federation of State Medical Boards (FSMB) updated its telemedicine policy for the first time since 2014, in recognition of the benefits of telemedicine and its increased utilization. The FSMB Workgroup on Telemedicine recognized that exceptions to in-state licensing should be made for certain consultations and screenings, episodic or follow-up care for established patients, and clinical trials. However, the FSMB still generally recommended that physicians must be licensed or otherwise authorized by the state medical board.
In most states, telehealth providers must be licensed within the state where the patient resides or is receiving the care. A minority of states still have temporary public health emergency-related waivers in place. A larger minority of states have permanent registration programs that allow interstate telehealth practice without requiring full licensure. However, the largest recent area of growth for interstate licensing is interstate compacts, which streamline the interstate licensing application process but do not abbreviate the licensure requirements of participating states.
1. Temporary Waivers
During the pandemic, nearly every state issued temporary waivers to medical professionals licensed in other U.S. jurisdictions, allowing providers to offer telehealth services across state borders without undertaking the licensure process in the state where a patient resides or is receiving care. However, most of these programs have now ended or will end soon, including three states (New York, Washington, and Pennsylvania) whose waivers expired this past October.
Now, only seven states maintain ongoing waiver programs, though all are slated to end in 2022, 2023, or at the end of the national public health emergency. In California, the Emergency Medical Services Authority may continue to accept out-of-state medical personnel until the scheduled end of California’s public health state of emergency on February 28, 2023, but all other providers must be licensed in state. Idaho’s waiver program will expire on January 1, 2023. Indiana’s Emergency License Registry program will continue through the remainder of the national public health emergency. In Kansas, waivers allowing interstate work will continue until the Kansas state of emergency expires on January 20, 2023. In Texas, temporary permits will remain active until the end of the Texas state of emergency on November 18, 2022, or 30 days after licensure, whichever is longer. In Vermont, Interim Telehealth Registration continues until June 30, 2023. West Virginia continues to offer waivers during the ongoing COVID-19 emergency, in addition to permanent interstate telemedicine registration (see below).
2. Permanent Registration or Endorsement Programs
Some states have enacted registration or endorsement programs. While these can still be a barrier to interstate care, they allow providers to offer interstate telehealth services without acquiring a full license in the state of practice (i.e., the state where the patient resides or is receiving care).
Arizona, Delaware, Florida, Indiana, Kansas, Minnesota, and West Virginia allow physicians licensed in other states to offer telehealth services if the physicians are properly registered with the state. The process for registration ranges from submitting a certification that the physician agrees to be subject to the state’s laws and the jurisdiction of its courts (Indiana), to an application including a third-party affidavit and a fee (Kansas). Although Maine also has an interstate telehealth registry, registration allows physicians to provide consultative services only as requested by other medical professionals licensed in Maine. Vermont offers registration but limits the number of patients served and days of service a registered out-of-state physician may offer. However, Vermont also offers a telemedicine license, which expands but sill restricts the number of Vermont clients a physician can serve.
Louisiana, Nevada, New Mexico, Oklahoma (for osteopathic use only), Oregon, Tennessee (for osteopathic use only), and Texas offer telemedicine permits or licenses which, unlike Vermont’s, do not restrict the number of patients a physician may take as clients.
Utah allows the pro bono practice of telemedicine by physicians licensed in other states without requiring any registration. Beginning in 2023, Oregon will also allow unregistered limited pro bono work by out-of-state physicians. In Washington state, physicians without a Washington license may only provide consultations to other physicians.
Under a law passed in 2019 and implemented by early 2021, Pennsylvania offers case-by-case licensure by endorsement to physicians licensed in jurisdictions with requirements substantially similar to Pennsylvania’s. Pennsylvania also offers extraterritorial licenses to physicians in adjoining states who reside or maintain offices of practice near the state boundary.
3. Interstate Compacts
The Interstate Medical Licensure Compact (IMLC or Compact) is an interstate agreement that has been operational since 2017. In participating states, physicians can apply for additional state licensure through the Compact and eventually qualify to practice medicine across state lines within the Compact if they meet the Compact’s eligibility requirements. Licenses are still issued by individual states; the Compact is not a reciprocity program, but rather a streamlined option for physicians to acquire multiple licenses in facilitation of interstate health practices. States that participate in the Compact are able to streamline licensure by using an expedited process to share information with each other that a physician has previously submitted to a state in which the physician holds a full and unrestricted medical license. The Compact refers to that state as a State of Principal License (SPL).
Current membership includes 37 states, Washington, DC, and Guam. Although Oklahoma, Connecticut, and Vermont are members, they are not states of principal licensure, meaning that physicians from other states may use the IMLC to get licenses for those three states, but Oklahoma, Vermont, and Connecticut physicians may not use the IMLC to acquire additional licenses themselves.
Recent additions to the IMLC include Connecticut (2022), Texas (2021), Louisiana (2021), Georgia (2021), Delaware (2021), and Ohio (2021).
Included among the 37 states are ones where legislation has passed but implementation is in process or delayed. New Jersey passed legislation that allows it to join the IMLC in early 2022, and implementation is in process. Indiana and Rhode Island passed laws in 2022 allowing IMLC participation, but according to the IMCL, implementation in both states has been delayed. In 2016, legislation to join the IMLC passed in Pennsylvania. Implementation was delayed because of concerns raised by the FBI about information sharing for criminal background checks. In March 2021 new legislation was introduced in Pennsylvania to address these concerns. It is pending.
Legislation has been introduced but has not yet passed in three additional states: Massachusetts (2022), New York (2022), and North Carolina (2021).
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If you have further questions about telehealth licensing and cross-border physician practice or need assistance interpreting federal, state or local health law or state regulation, please feel free to contact the authors of this alert or your Venable relationship attorney.