Extraordinary times often call for extraordinary measures. Such was the case during the COVID pandemic, when emergency use authorizations (EUAs) were implemented to relax regulatory applications in order to ease healthcare staffing burdens and meet the immediate needs of the higher than typical number of folks seeking care.
Today, with the COVID public health emergency officially behind us and these EUA statutes coming to an end, telehealth providers and their insurance carriers must re-examine practices and processes to ensure that they remain compliant, a complicated prospect for providers that may have spread their wings over the past few years.
What changed under COVID-era EUAs?
Typically utilized by the FDA to fast-track vaccines and medications, EUA statutes were also used to address some of COVID's biggest logistical challenges during the public health emergency by temporarily waiving regulatory requirements.
During this period, states waived some aspects of their licensing requirement. Many also took steps to coordinate the licensure process for providers to practice telehealth across state lines. Where once a medical professional would need to be licensed separately in each state where they wished to practice, under the EUA, states would recognize a healthcare provider's license from another state so they could provide services, either in person or via digital health platforms.
At the same time, the Ryan Haight Act—which says that patients must have at least one in-person examination before they can be prescribed controlled substances and then must have recurring in-person exams to get refills—was also waived under EUA, again to meet patients' immediate needs.
What are the key concerns now that EUA statutes are coming to an end?
The COVID-era statutes technically expired on May 11, raising concerns both over patients' ability to get in front of a provider and their ability to get their prescriptions filled.
As these statutes come to an end, providers now need to scan their patient rosters and their books and make sure that they're not crossing state lines from a logistical point of view - they need to understand where they're serving clients, where their providers are located, and what their individual licenses are for.
Many providers have immediate concern over the in-person aspect of this shift, as they consider how these changes are going to impact ongoing staffing shortages. A return to traditional state licensing requirements will not only present new challenges to organizations already struggling to get new providers on board and keep folks on their staff, it also could affect whether they are able to continue providing services in all of the states where they currently operate. We're seeing some states enter into reciprocal licensing agreements with one another in response, but that's not happening everywhere, and now providers may no longer be able to operate in specific states that don't participate in these kinds of handshake agreements.
What do telehealth providers need to know about the Ryan Haight Act?
In regard to the Ryan Haight Act, telehealth providers will also need to consider whether they actually have the ability to see patients in person. Platforms that currently offer no in-person services will likely need either to partner with a patient's primary care provider for in-person consultations or to create an in-person brick-and-mortar arm. We're seeing it happening both ways, with telemedicine entities purchasing standalone urgent care facilities to have a physical location, and traditional brick-and-mortar providers adding on a tele-med arm. In both cases, some form of deliberate action will be required to ensure compliance.
Fortunately, providers have a bit more time to sort some of these issues out now that the US government has formally announced an extension of telemedicine flexibilities specific to the prescription and dispensing of controlled medications. Under the terms of this extension, controlled substances may continue to be prescribed and refilled digitally by DEA-registered practitioners authorized to prescribe schedule II-V controlled substances through November 11, 2023. The extension will go on an additional year, to November 11, 2024, for instances where the prescription is to a patient with whom the practitioner originally established a relationship via COVID-19 telemedicine prescribing flexibilities without having conducted an in-person medical evaluation of the patient.
What must insurance carriers and their telehealth clients consider in light of these changes?
Telehealth organizations will have to really keep their finger on the pulse of these changing regulations to make sure that they are practicing legally, and insurance carriers and brokers will be looking to support them in these efforts, both in terms of broader education initiatives and more situation-specific midterm adjustments.
Immediate action items should include making sure telehealth organizations know where their providers sit, where their patients sit, and whether they have the capabilities to see patients in person. As client organizations enter into new jurisdictions, employ and contract new providers, and incorporate new legal entities, brokers are working hard to make sure that the terms are updated to reflect all of the organization's agreed exposures.
As insurance underwriters, we don't know how to make these adjustments unless our broker partners recognize the changing exposures and keep us informed, so there is a level of communication that has to happen between the insured, the broker and the carrier to ensure that everyone is on the same page. It's really just about being transparent, and insureds need to keep open dialogues going with their broker and carrier partners so that we know to tweak coverage if needed.
Even with the best intentions, this can be tricky in telemedicine, simply because there are a lot of different kinds of experience levels and backgrounds that are working on risks in the space. Healthcare brokers typically have more of a finger on the pulse of the healthcare industry's changing regulation, but those who come at telehealth from more of a tech or a cyber background might not be made aware of these changes.
The expiration of COVID-era EUAs and the resulting impact on the changing telehealth industry will likely continue to evolve over the coming months and years. While it remains to be seen exactly how this will all play out, telehealth entities that stay informed and vigilant – and the carrier and broker partners that help them to do so – will be best positioned for success in a post-pandemic world.
