As States Modify Telehealth Guidelines, Licensing Arguments Resurface

Mississippi state officials have found that a loosening of the state’s telehealth regulations to address the Coronavirus pandemic caused more problems than it solved.

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On March 14, the state’s Board of Medical Licensure issued a notice that out-of-state physicians “may utilize telemedicine when treating patients in Mississippi without the necessity of securing a license to practice medicine in the state,” as long as that physician has a license in his or her home state and isn’t under investigation.

But after receiving roughly 1,200 applications from out-of-state providers to treat patients in the state, the board revised its guidelines. The notice, issued two weeks later, limits out-of-state physicians to using telehealth to treat residents with whom they’re already established a doctor-patient relationship, while allowing physicians in the state to use telehealth to treat new patients.

“We didn’t get that language exactly right, which opened up essentially any physician that wanted to do telemedicine into Mississippi could,” Ken Cleveland, the board’s executive director, told Mississippi Today.

The issue highlights the challenges faced by healthcare providers looking to expand their telehealth and mHealth platforms to deal with an increase in virus-related traffic, isolate infected patients and keep their doctors and nurses safe. Federal and state officials have been slow to embrace telehealth, with barriers to the types of technology used, where it can be used, by whom and on whom it can be used and how providers can be paid for those services.

License portability and interstate licensure is a particularly troublesome topic. Interstate licensure compacts are now up and running for doctors, nurses, physical therapists and psychologists, offering reduced red tape and an easier pathway to treat patients in multiple states – a key building block to the establishment and scalability of telehealth programs. But those compacts only work in member states, and many state medical boards aren’t interested in joining.

With the onset of the Coronavirus, state officials have taken a number of emergency actions to ease the rules on telehealth, including allowing out-of-state providers to treat residents and in-state providers to treat those in other states. According to the Federation of State Medical Boards, which keeps a running tally of state emergency actions, roughly 24 states have enacted emergency rules aimed at relaxing telehealth licensing and credentialing requirements. But each state’s rules are different, and providers have to do a considerable amount of research before virtually venturing across state lines.

Further complicating things is the language used in the emergency declarations. Several give out-of-state providers the ability to “practice in” the state, “render temporary assistance” or “provide services … with out-of-state licenses” without clarifying whether practicing medicine includes using telemedicine technology.

In Mississippi’s case, the emergency rules are designed to address an urgent problem. The state has reported roughly 2,000 diagnosed cases of COVID-19 and roughly 30 deaths, and reportedly has the highest hospitalization rate in the country, at 31 percent. The amended order focuses on out-of-state providers who have already treated Mississippi residents, with the idea that they’ll handle their patients and give Mississippi providers the freedom to focus on the virus.

Cleveland said the amended rule prevents telehealth companies from “taking advantage of the situation for profiting reasons.” He also said the state isn’t facing a physician shortage. Both arguments have long been used by opponents of interstate licensure.

Not everyone agrees.

“It’s inexcusable that the board is not doing everything that they can to increase the supply of qualified health care professionals,” Jameson Taylor, a policy researcher and lobbyist for the Mississippi Center for Public Policy, told Mississippi Today. “It seems to me that the board only cares about power, if they cared about the safety of Mississippi patients they’d be pursuing policy that increases (the) supply of qualified health care providers. Instead, they’re limiting supply when we already have a doctor shortage in Mississippi. They’re increasing wait-times for patients and they’re closing off opportunities for care.”

“I think the board’s primary concern is to protect the particular business model that they want to pursue, and even in that respect I don’t think that their primary concern is to open up opportunities for Mississippi doctors, much less to provide quality care for Mississippi patients,” he added. “And I say that because Mississippi physicians could benefit from telemedicine.”