As State Emergencies End, Providers Look for New Telehealth Limits

As the pandemic eases and state public health emergencies expire, healthcare providers are scrambling to figure out what they can and can’t do with telehealth any more.

Florida Governor Ron DeSantis allowed his state’s state of emergency to expire this past weekend after extending it several times, ending a number of emergency measures aimed at expanding connected health coverage and access to deal with COVID-19.

As a result, providers can no longer use audio-only telehealth platforms, such as the phone, to treat patients unless they’re on Medicare. They can’t prescribe controlled substances via telehealth for patients dealing with chronic pain or renew medical marijuana prescriptions via telehealth, and the frequency and length of telemental health services for Medicaid members will be reduced.

In addition, the state had loosened guidelines to enable providers from other states to treat Florida residents via telehealth. That freedom is gone.

“Drinks to go made it into permanency but telehealth didn’t,” Ron Watson, a medical marijuana lobbyist who had been unsuccessfully pushing state lawmakers to extend the emergency waivers, told the Miami Herald. “We can get support for (alcohol) but not for medicine.”

The situation is similar – that is, chaotic – in several states.

In Alaska, residents had found it easier to get telehealth appointments with doctors because the state had an emergency provision in place that allowed out-of-state care providers – many of them based in Washington – to treat them without a license.

That ended with the end of the emergency order. Now out-of-state providers have to have an Alaskan license, which takes a while to get and costs upwards of $800.

The state has created an emergency courtesy license that allows out-of-state providers to treat Alaska residents for six months, but the backlog is daunting. One Seattle hospital had more than 100 providers treating Alaska patients during the pandemic, but only 20 can continue.

“We need to make sure that these doctors don’t have any sort of major gaps in their education or experience or any disciplinary action that would be concerning,” Glen Hoskinson, a special assistant with the state’s Department of Commerce, Community, and Economic Development, told public radio station KTOO.  “The last thing we want to do is have a doctor told they can’t practice in Washington anymore, because they did something atrocious. And then we didn’t check into that and we allow them to practice in Alaska. That would be a big public safety concern.”

But Jared Kosin, who leads the Alaska State Hospital and Nursing Home Association, said the pandemic has proven that telehealth works, and that lawmakers should extend some of the emergency measures that have helped improve access to care.

“We need to figure out how to take some of those flexibilities — not all of them because you do not want a pandemic model of care have made permanent, it doesn’t make sense in the everyday world — but can we take some of those flexibilities and the ones that make sense and reform telehealth in Alaska to incorporate them,” he told KTOO News.

Nearly every state has changed its telehealth coverage during the pandemic, according to statistics kept by the Center for Connected Health Policy and the Federation of State Medical Boards. Organizations like Manatt Health and the National Conference of State Legislatures are also keeping track of state telehealth policies.

Some states have passed legislation permanently extending pandemic-era telehealth coverage, while others have extended theirs for a while, with an eye on what the federal government will do. Others have chosen to revert to pre-COVID-19 telehealth rules.

The challenges relate to whether state lawmakers feel that telehealth has done enough good during the pandemic to justify a permanent extension. For modalities like audio-only telehealth, that’s a state-by-state battle.

Idaho Governor Brad Little saw no need to argue. In June 2020, he signed an executive order making permanent more than 150 emergency rules enacted during the pandemic, including several related to telehealth.

“Our loosening of healthcare rules since March helped to increase the use of telehealth services, made licensing easier, and strengthened the capacity of our healthcare workforce – all necessary to help our citizens during the global pandemic,” he said. “We proved we could do it without compromising safety. Now it’s time to make those healthcare advances permanent moving forward.”

“By suspending certain rules during the pandemic – such as allowing the use of Zoom, Facetime and other applications and making it easier for providers to offer telehealth services – we’ve been able to address the critical shortage of medical providers in every county in the state,” he added. “This serves to make healthcare more accessible and affordable for Idaho families and businesses.” 

In Connecticut, meanwhile, Governor Ned Lamont extended COVID-19 telehealth coverage for two years, giving lawmakers and providers extra time to map out permanent telehealth policy.

“Throughout the last year, patients across Connecticut have found that connecting with their medical providers through videoconference or telephone has been incredibly beneficial and practical for a wide variety of reasons, so it absolutely makes sense to allow for these services to continue,” he said. “Making it easier for people to connect with their doctors or medical advisors is a goal that we should strive to attain. I appreciate the state legislature for recognizing the benefits of the emergency executive order that I signed at the beginning of the pandemic, and I appreciate their bipartisan cooperation in passing this legislation so that I could sign this into law today and these relaxed telehealth rules can continue.”

Not all of those freedoms passed through, however. The state's emergency measure allowing providers from other states to treat Connecticut residents via telehealth ended on July 20. The emergency order had allowed for telehealth services from other states "under any relevant order issued by the Commissioner of Public Health," but when the state's public health emergency ended, there were no relevant orders in place to keep that going. 

While state telehealth legislation is confusing, federal regulations are more straightforward – for now. The federal public health emergency is in effect until at least July 19, and acting HHS Secretary Javier Becerra has told states the PHE will likely remain in place through 2021. This will keep in place emergency waivers enacted by the Health and Human Services Department on telehealth coverage and access through the Centers for Medicare & Medicaid Services.

Organizations like Foley & Lardner are keeping track of those measures, and have offered providers some advice on what to do to shore up telehealth programs before the federal emergency ends.