VA's Proposed Rule Would Override State Telehealth Regs

Ken Terry

October 02, 2017

The US Department of Veterans Affairs (VA) has proposed a rule that would preempt state laws restricting the ability of VA healthcare providers to supply telehealth services to veterans across state lines or within states. The department said that the new regulation would increase the availability of mental health, specialty care, and general clinical care to veterans, especially in rural areas.

To provide care to all veterans and use its resources efficiently, the VA noted in the proposed rule, the department must operate a telehealth program with healthcare providers who furnish telehealth services to patients not located in the state where they are licensed.

"Currently, doing so may jeopardize these providers' credentials…because of conflicts between VA's need to provide telehealth across the VA system and some states'…requirements that restrict or limit the practice of telehealth," the proposal stated.

To protect VA providers from potential adverse state actions, many VA medical centers are not expanding telehealth services if the healthcare service would be provided outside federal property (such as receiving or providing telehealth care at home) or across state lines, the proposed rule said.

In addition, it noted, "Many individual VA health care providers refuse to practice telehealth because of concerns over states taking action against the health care provider's state license."

This rulemaking, the proposal said, "would clarify that VA health care providers may exercise their authority to provide care through the use of telehealth, notwithstanding any state laws, rules, or licensure, registration, or certification requirements to the contrary."

Crucially, the proposal stipulated that the rulemaking would not expand the scope of practice beyond what is allowed in VA providers' states of licensure. So it doesn't invalidate the VA's current requirement that clinicians adhere to restrictions imposed by their states — as well as the US Drug Enforcement Administration — regarding their ability to prescribe controlled substances.

In addition, the proposed rule said that contracted VA providers would not be affected by the preemption of state regulations. They would still have to follow state rules governing the use of telehealth.

Virtual Visit Service

This proposal comes on the heels of the VA's announcement in August that it planned to roll out a new virtual visit service called VA Video Connect. That service will allow any VA physician to conduct a telehealth visit with any veteran anywhere in the country. In making this announcement along with President Donald Trump, Secretary of Veterans Affairs David Shulkin, MD, noted that a new federal regulation would be required to allow VA doctors to treat patients remotely across state lines.

The VA's telehealth program is already quite substantial. In fiscal year 2016, the proposal noted, VA healthcare providers had 2.17 million telehealth encounters with 702,000 veterans, nearly half of whom lived in rural communities.

The proposed rule emphasized that the elimination of veteran suicide and access to mental healthcare are top priorities for the department. This rulemaking, the proposal said, would improve the ability of VA providers to reach vulnerable veterans, including those who live in areas where behavioral health professionals are in short supply.

VA studies show that telehealth can improve care and outcomes, the proposed rule said. In fiscal year 2016, there was a 31% decrease in VA hospital admissions for veterans enrolled in the home telehealth monitoring program for noninstitutional care needs and chronic care management. For veterans who received mental health services via telehealth, the VA documented a 39% reduction in the number of acute psychiatric bed days of care.

Expanding telehealth services could also serve as a recruitment incentive for VA healthcare providers in professional shortage areas, the VA argued. The proposed rule cites the Charleston, South Carolina, VA hospital, which provides mental health services to veterans in eight states with a team of 30 full-time providers. The hospital has vacancies for psychiatrists, and the VA noted that applicants for these jobs have said they are interested only in working via telehealth. If providers could practice telehealth while working from alternative worksites, the VA said, the Charleston facility would be able to fill its vacancies and retain needed healthcare professionals.

Medical Board Responses

The VA consulted with state governors, the Federation of State Medical Boards (FSMB), and other associations before releasing its proposed rule. The FSMB, in turn, asked its member boards to comment. Some medical boards, including those in North Carolina, Rhode Island, Utah, and Wisconsin,  as well as the National Council of State Boards of Nursing, supported the VA's preemption of state regulations.

Other regulatory entities, including the Pennsylvania State Board of Medicine, the Michigan Department of Licensing and Regulatory Affairs, and the West Virginia Board of Osteopathic Medicine, opposed the initiative. The Florida Board of Medicine said Florida does not prohibit telehealth except in certain circumstances; the VA responded that this rule would preempt those circumstances.

Jack Resneck Jr, MD, chair-elect of the American Medical Association's (AMA's) board of trustees, said in a statement, "The AMA supports expansion of clinically validated telehealth services within the VA, and this decision ensures that important patient protections are in place for the delivery of high quality and reliable care."

He continued, "The AMA strongly supports that the proposed rule explicitly provides that this program's multi-state licensure exception applies only to VA-employed providers and would not be expanded to contracted physicians or providers who are not directly controlled and supervised by the VA and would not necessarily have the same training, staff support, shared access to a beneficiary's [electronic health records] and infrastructure capabilities. We applaud the VA's expansion of telehealth services in a manner that promotes quality and access."

The VA said that the comment period on the proposed rulemaking would last only 30 days after the publication of the proposal in the Federal Register. The department said that it would not solicit comments for the usual 60 days to avoid endangering the health of veterans who lack access to telehealth services because of state restrictions.

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