Jeremy D. Sherer, JD

Increased use of digital health technology has expanded the physician’s toolkit heading into 2023. Widespread adoption and patient satisfaction with virtual care means physicians have to prepare for patients requesting video visits and other telehealth services.

At the same time, the regulatory landscape concerning the practice of medicine has evolved significantly in response to the COVID-19 pandemic, though many of those changes have been temporary. Physicians need to understand those changes heading into 2023. As medicine is regulated state-by-state, an exhaustive survey of state laws isn’t possible in this format. This article aims to help physicians “issue-spot,” and identify the questions that they should be asking, as they offer virtual care in 2023.

What care can be provided via telehealth? 

Physicians are responsible for meeting the standard of care at all times, regardless of the modality of care delivery. Telehealth should only be used when it can provide the physician all the information needed to meet the standard of care.

It depends. The general principle is that the physician must be licensed in the state where the patient is located at the time of treatment. All states have exceptions to that rule, but they vary significantly. State-specific exceptions may allow treatment of established patients, permit treatment of a certain number of patients across state lines per year, allow treatment as long as the out-of-state physician does not establish a brick-and-mortar facility in the other state, permit interprofessional consults, or allow the provision of care if the physician is not compensated for it. Every state is different, and it is important to check applicable state law before providing care to out-of-state patients. Many state medical boards have helpful guidance concerning telehealth available on their websites.

. Every jurisdiction in the United States modified applicable state law in some way to facilitate providing care via telehealth during the COVID-19 pandemic. And while most waivers have lapsed, physicians should 

 assume that state licensure laws are waived without checking.

 video visits) are generally permitted, including those intended to establish relationships with new patients. On the other hand, many states prohibit establishing a practitioner-patient relationship via telephone only.

Almost all states allow treatment of new patients via “store-and-forward” communication—a workflow in which the patient captures their own clinical data and sends them to the practitioner to assess from a remote location, not in real time. Types of store and forward communication can include photographs or videos highlighting a patient’s symptoms and condition.

 State“coverage parity” laws require payers to cover a service delivered via telehealth if the service is covered in-person. “Payment parity” laws require payers to pay the same amount for a service whether it is delivered in-person or via telehealth. Currently 43 states and the District of Columbia have coverage parity laws, while 24 states have payment parity laws.

In states without payment parity laws, commercial payers are free to negotiate different payment for services delivered via telehealth and in-person, and regularly do so. That makes it important for providers to familiarize themselves with the terms of their payer agreements concerning telehealth services.

 State Medicaid programs vary considerably in how they handle telehealth. All 50 states and the District of Columbia pay for some type of treatment provided via video visit, 25 states cover some type of store-and-forward communication, and 34 state Medicaid programs cover some type of telephone visit. Given this variation, it’s critical for providers to consult conditions of coverage and participation in their state before submitting claims for telehealth services provided to Medicaid beneficiaries.

 Historically, Medicare has been very restrictive in its telehealth coverage. Pre-pandemic, it covered telehealth services only for Medicare beneficiaries receiving treatment in facilities located in rural “health professional shortage areas” and ifthe service was on the Centers for Medicare & Medicaid Services’ (CMS) list of covered Medicare telehealth services.

During the COVID-19 pandemic, these coverage and reimbursement requirements were temporarily waived, enabling Medicare beneficiaries to receive treatment at home via telehealth, whether or not they were located in rural health professional shortage areas. CMS is limited in its ability to expand coverage of telehealth because Medicare’s coverage and reimbursement standards are part of the Social Security Act, a federal law that can only be amended by Congress. This is an important area for physicians treating Medicare beneficiaries to follow heading into 2023.

Jeremy D. Sherer is co-chair of the digital health practice at the law firm Hooper, Lundy & Bookman in Boston and Washington, D.C.

This article was published by our sister publication Medical Economics.

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