Will the TELE-MED Act of 2015 Really Change Licensure Rules?

Foley & Lardner LLP

Congress is reviewing legislation designed to permit telemedicine providers to treat Medicare patients across state lines without the need for separate state licensure. The Telemedicine for Medicare Act of 2015 (S. 1778 and H.R. 3081), known as the TELE-MED Act of 2015, is sponsored by Representative Devin Nunes (R-CA), 15 Republicans and 9 Democrats in the House, and sponsored by Sen. Mazie K. Hirono (D-HI) and Sen. Joni Ernst (R-IA) in the Senate.

There are minor differences in the wording of the Bills in the House and the Senate, the key language is identical, stating:

In the case of a Medicare participating physician or practitioner who is licensed or otherwise legally authorized to provide a health care service in a State, such physician or practitioner may provide such a service as a telemedicine service to a Medicare beneficiary who is in a different State, and any requirement that such physician or practitioner obtain a comparable license or other comparable legal authorization from such different State with respect to the provision of such health care service by such physician or practitioner to such beneficiary shall not apply.

The Act is intended to reduce barriers to inter-state care, bringing more options to underserved areas and allowing providers to expand their reach. And it would, in the context of Medicare coverage qualifications for providers. But keep in mind, the TELE-MED Act proposes a change to Medicare coverage and reimbursement rules; it is not a federally-imposed change to eliminating state laws requiring a physician to be licensed in those various states. It is unclear how the TELE-MED Act will be interpreted in connection with states’ rights under the 10th Amendment. Even if Medicare does not require state licensure for payment purposes, the TELE-MED Act may not necessarily immunize a physician from unlicensed practice of medicine under state laws.

That said, the TELE-MED Act is another in a series of recent legislative efforts, both federal and state, designed to reduce barriers to care via telehealth. The TELE-MED Act is supported by at least 21 national associations and businesses, including the National Council for Behavioral Health and the U.S. Chamber of Commerce.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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