Bill to Expand Telehealth Services for Veterans Introduced into Congress

The Veterans Community Care and Access Act of 2017 was introduced into Congress on December 1, 2017. If enacted into law, the bill would modernize the Department of Veterans Affairs (VA) healthcare system, including allowing physicians who use telemedicine to provide treatment to veterans across state lines, regardless of where the veteran lives. Currently, many state licensure laws and state medical boards restrict the use of telemedicine, requiring providers to have a medical license in the state where the patient is physically located. For instance, a provider may be authorized to use telemedicine if the patient is in another state only if the physician has a medical license from the state where that patient is located.

The Veterans Community Care and Access Act of 2017 follows a new telehealth initiative announced by the VA in August 2017 called the “Anywhere to Anywhere VA Health Care” program. After announcing the program, the VA proposed the “Authority of Health Care Providers to Practice Telehealth” rule on October 2, 2017. The proposed rule would establish a new regulation, 38 C.F.R. § 17.417, that would authorize VA health care providers to treat beneficiaries through telehealth, regardless of the State or location within a State where the health care provider or the beneficiary is physically located. In doing so, VA would exercise Federal preemption of State licensure, registration, and certification laws and regulations to the extent those laws and regulations conflict with VA health care providers’ ability to engage in telehealth while acting within the scope of their employment.

The proposed regulation makes clear that VA health care providers would still be required to adhere to other requirements and restrictions imposed by State licensing laws and regulations regarding the scope of practice for VA health care providers, i.e., restrictions on the administration of controlled substances and prescribing. The impetus behind the proposed regulation is to alleviate provider fears regarding the repercussions of more restrictive State licensure rules and regulations, which restrict the use of telemedicine across state lines. Comments regarding the proposed rule were due to the agency by November 1, 2017.

While the “Authority of Health Care Providers to Practice Telehealth” rule would provide the regulatory authority, the Veterans Community Care and Access Act of 2017 would provide the legislative authority to allow VA providers to practice telemedicine across State lines. The Veterans Community Care and Access Act of 2017 copies language from the Veterans E-Health & Telemedicine Supports (VETS) Act of 2017, which was passed by the House of Representatives in November 2017, and provides that VA health care providers may provide services at any location in any State, regardless of where in a State the health care professional or the patient is located. As of November 8, 2017, the VETS Act was referred to the Committee on Veterans’ Affairs and currently awaits a Senate vote. Both the VETS Act and the Veterans Community Care and Access Act require the Secretary of the VA to report on the effectiveness of the use of telemedicine, i.e., veteran and health care provider satisfaction, frequency of use of telemedicine by veterans, and productivity of health care providers, within one year.

Telemedicine is an important topic as demand for telehealth services continues to grow and access to health care continues to plague the U.S. health care system. Similar to the initiatives for veterans, telemedicine policies may also expand to allow for the use of telemedicine across State lines to treat patients in other areas where there is a health care shortage, such as, for instance, certain rural areas. This may impact Critical Access Hospitals (CAHs) and other providers designed to meet the needs of vulnerable populations. States may consider revamping or expanding telemedicine policies to remain apace with the current climate. Providers should be aware of current telemedicine restrictions and any changes to existing legislation to avoid running afoul of licensure laws.

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