New VA Rule to Ease Restriction on Telehealth Across State Lines

Kerry Dooley Young

May 28, 2018

WASHINGTON — Physicians, nurses, and other healthcare professionals who work for the US Department of Veterans Affairs' (VA's) health system will be able to more easily provide telehealth across state lines, owing to a new federal rule set to kick in next month.

The VA on May 11 published a final rule to override certain state restrictions regarding telemedicine. The rule takes effect on June 11. Healthcare can now be provided within the VA system regardless of where the patient or medical professional is located. Treatment can now be provided across state lines or in facilities other than VA centers, the department said.

The new rule is part of the VA's Anywhere to Anywhere initiative, which reflects the department's embracing of technology that connects patients with physicians and other healthcare professionals who are at a distance from each other.

Some Limits

The VA said it used federal rule making to preempt a thicket of potentially conflicting state regulations that can impede veterans' access to care. This approach prevents the VA from having to lobby for this cause in many different states.

The easing of restriction leaves some limits in place, though. The VA requires that healthcare professionals continue to meet state licensing and registration rules, the department said — and contracted healthcare professionals are not covered under the initiative.

The American Medical Association (AMA) had strongly supported this plan as a proposed rule and had praised its limited scope. In a November comment on the draft version of the rule, the AMA applauded the VA for its plan to exclude contracted physicians from the easing of this restriction.

In the comment, James L. Madara, MD, chief executive officer of the AMA, said the organization supports the VA's use of contract physicians and their work in telemedicine. But the AMA maintains that these physicians must be licensed in the state where the patient is being treated.

"This is an important distinction — contracted physicians and other health care professionals are not subject to the same accountability, oversight, training, and quality control as those employed directly by the VA," Madara wrote. "Without such protections, should VA patients be subject to services that fall short of the standard of care, they would have limited recourse or opportunity to seek redress and relief under their own state's medical practice and patient safety laws and regulations."

Genoa Telepsychiatry, which describes itself as the nation's largest provider of outpatient telepsychiatry services, had sought to have the new rule apply to contractors.

In an October 2017 comment to the VA, the firm said a bar against contractors in the draft rule "effectively ties the hands of the Veterans Health Administration regarding contracting with an outside entity that may be able to fill a need."

In the final rule, though, the VA maintained the limited reach of the proposed change. "We do not believe it is prudent or necessary at this time to include contract providers within the scope of this rule," the VA said.

"Important Signal"

The VA's move to expand telehealth may serve as a model for other healthcare organizations, said the Federal Trade Commission (FTC) in its comments on the draft rule.

"The VA's leadership and foresight on telehealth will send an important signal to all US health care stakeholders regarding the likely benefits of reducing licensing-related barriers to telehealth practice and provide an opportunity to assess additional empirical evidence regarding telehealth," the FTC wrote.

The VA already is a leader in the field — it provided 2.17 million episodes of telehealth to patient in fiscal 2016. The VA serves more than 702,000 veterans, the FTC said.

"To put these numbers in perspective, 12 percent of the veteran patient population received some form of telehealth care in FY 2016," the FTC said in its comment.

The preemption of state rules should help address shortages within the VA, the FTC said. The department has of yet been unable to fill multiple vacancies for telehealth psychiatrists.

"A number have either left the VA system or refused to provide telehealth services because of concerns about possible adverse actions by states in which they are not licensed or whose requirements are inconsistent with VA protocols or policies," the FTC wrote.

Telehealth offers particular benefit for people who need treatment for mental illness, the FTC wrote.

"Because of the nature of their conditions, many are simply unable to leave the house or make even a short trip to obtain care," the FTC wrote. "Similarly, the ability to manage complex chronic conditions via home telehealth may allow veterans to stay in their homes and avoid institutional care."

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