How Do COVID-19 Licensure Waivers Relate to Telemedicine Practice?

Last Updated: Nov 4, 2020

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In response to the COVID-19 pandemic, a number of regulatory waivers and suspensions have been issued on both the federal and state levels. Many of these waivers involve the suspension of certain licensure requirements for the duration of the current public health emergency.

The Pennsylvania Medical Society (PAMED) has received many questions from physicians concerning how these licensure waivers issued affect the practice of telemedicine. The following article provides information to answer the most commonly asked questions PAMED has received.

What Rules Apply to Telemedicine?

In Pennsylvania, there is no statute or regulation providing parameters for the practice of telemedicine. When practicing telemedicine, practitioners must comply with all applicable statutory provisions and licensure board regulations regarding standards of practice that would have otherwise applied had the physician-patient encounter occurred in-person. Note this would include requirements such as appropriate medical record and note keeping, proper prescription writing and dispensing, and the Prescription Drug Monitoring Program (PDMP) amongst other requirements.

As a general rule, the physical location of a patient when health care services are rendered determines the practice location of the practitioner. The laws and regulations of the practice location would apply to the health care services provided. Most states require a practitioner to obtain appropriate licensure in that state before providing any health care service to a patient within its boundaries.

For example, if a patient was physically located in New York and had a telemedicine appointment with a physician located in Pennsylvania. The location of the patient would determine which state’s requirements apply. Because the patient was located in New York when care was provided, the physician would be considered to be practicing medicine in New York. The Pennsylvania physician would need to comply with relevant New York laws, including licensure requirements, in order to provide care to the patient.

Can Pennsylvania-Licensed Physicians Provide Telemedicine Services to Pennsylvania Patients?

Earlier this year, Governor Wolf issued a waiver regarding the practice of telemedicine. This waiver clarified that no Pennsylvania law prohibits the practice of telemedicine. Additionally, this waiver also proclaimed that health care practitioners licensed under the Pennsylvania Department of State’s (DOS) Bureau of Professional and Occupational Affairs’ (BPOA) health care licensing boards are permitted to provide services via telemedicine when appropriate. Note that this portion of the waiver applies only to telemedicine services provided by Pennsylvania-licensed practitioners to Pennsylvania patients.

The full waiver can be accessed here and a press release regarding the regulation can be accessed here.

There have also been some additional waivers issued by Gov. Wolf related to telemedicine practice. For example, Pennsylvania State Board of Medicine regulations, see 49 Pa. Code §16.92(b)(1), require that practitioners regulated by the Board take an initial medical history and conduct an initial physical examination of a patient, unless emergency circumstances justify otherwise, before prescribing any controlled substances. Given the current circumstances, DOS determined this requirement curtails access to buprenorphine provided via telemedicine. A waiver was issued by Gov. Wolf and DOS to allow buprenorphine treatment via telemedicine for Opioid Use Disorder, more information on this waiver can be found here.

Can Practitioners Licensed in Other States Provide Telemedicine Services in Pennsylvania?

Gov. Wolf’s telemedicine waiver also allows licensed practitioners in other states to provide services to Pennsylvanian patients via the use of telemedicine, without first obtaining a Pennsylvania license, for the duration of the COVID-19 emergency.

Under this waiver, practitioners must meet the following requirements:

  • The practitioner must be licensed and in good standing in their home state, territory or country.
  • They must provide the Board they would normally seek licensure under with the following information prior to practicing telemedicine with Pennsylvanian patients:
    • The practitioner’s full name, home or work mailing address, telephone number where they can be reached, and an email address.
    • Identify the practitioner’s license type (e.g., “physician and surgeon,” “registered nurse,” etc.), any license number or other identifying information that is unique to that practitioner’s license, and the identify the state or other governmental body that issued the license.

Can Pennsylvania-Licensed Practitioners Practice Telemedicine Across State Lines?

Pennsylvania-licensed practitioners who wish to provide telemedicine services to patients in other states, in which the practitioner is not licensed in, need to check the licensure requirements of that state before providing any telemedicine service there.

Similar to Pennsylvania, many states have issued licensure waivers related to the practice of telemedicine in response to the COVID-19 emergency. The Federation of State Medical Boards (FSMB) is maintaining a comprehensive list of such waivers.

The full list maintained by the FSMB can be accessed here.

It is important to verify that applicable emergency waivers are still in effect. Although many waivers are for the duration of the COVID-19 public health emergency, some provisions in other states have been rescinded. In addition to checking the FSMB site, it is recommended that practitioners also verify waivers with the appropriate state licensing authority, board, or commission.

Additionally, before providing telemedicine services to patients in other states, practitioners should also consult with their professional liability carrier as there may be potential restrictions in coverage and verify reimbursement policies of payors.

What Is the Applicability of Federal Practice Location Waivers?

Section 1135 of the Social Security Act authorizes the Secretary of the Department of Health and Human Services (HHS) to temporarily modify or waive certain Medicare, Medicaid, CHIP, and/or HIPAA requirements under specified circumstances to match the particular needs of an emergency event. These waivers are commonly referred to as 1135 waivers.

To better allow for the provision of telemedicine services, pursuant to the 1135 waiver process, the Centers for Medicare and Medicaid Services (CMS) temporarily waived Medicare and Medicaid requirements that physicians and non-physician practitioners be licensed in the state where they are providing services. This waiver is mainly relevant to Medicare and Medicaid participation and reimbursement. This waiver does not have the effect of waiving state or local licensure requirements or any requirement specified by the State or a local government as a condition for waiving its licensure requirements. State licensure requirements still apply.

For additional information on CMS COVID-19 waivers, please see the following CMS resources:

Where Can I Find Additional Information?

Additional PAMED resources regarding telemedicine can be accessed here.

PAMED continues to monitor changes to licensing and regulatory requirements in response to COVID-19 and provide updates accordingly on its COVID-19 Resource Page. 

When announced, Pennsylvania state specific licensing waivers issued by DOS and BPOA will be posted by on the DOS website here.

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