In a March 24th letter to all of the nation’s Governors, Secretary Alex Azar of the Department of Health and Human Services (“HHS”) called upon states to take immediate action to loosen regulations that present obstacles to the delivery of effective in person and telehealth services during the COVID-19 emergency. In an effort to “carry out a whole-America response to the COVID-19 pandemic,” Secretary Azar asked governors to urgently take steps to “extend the capacity of the health care workforce.”

This call from the Secretary comes after several changes in Medicare billing requirements announced over the last two weeks. Those changes lifted state license and location enrollment for many Medicare services but did not correlate with states lifting their professional licensure requirements. Although a small number of states have waived the need for a license to treat patients in their state, the vast majority have not. Several states have acted in the last 48 hours to lift many but not all licensing requirements. If Secretary Azar’s request to the Governors is well received, each state agency and all payers (whether state regulated or not) will need to make correlated changes in their policies.

It should be noted that if Governors choose to implement the Secretary’s recommendations, those Governors who follow the broad language of the recommendations carefully and not narrow their implementation will make it faster for agencies and payors to implement the Governor’s order. Likewise, health care facilities will need to make adjustment in their medical staff and human resources policies.

The requested solutions will require changes at all levels of the health care provider regulation, credentialing, and payment spectrums. Even so, it will go a long way to solve the patchwork of COVID-19 waivers that have flooded provider compliance efforts during the pandemic.

The letter calls for states to implement eight recommendations aimed at expanding access to care during a time when hospitals and health systems are increasingly overwhelmed with patients. To promote the availability of responsive health care professionals, HHS specifically recommended states take the following actions:

  1. Allow health professionals who are licensed/certified in other states to practice in their state (either in person or through telehealth);
  2. Waive legal requirements that do not relate to the standard of care and prevent providers from treating new patients via telehealth;
  3. Relax scope of practice requirements for all health care professionals, including allowing professionals to practice in any setting;
  4. Expand the number of health care professionals a physician may supervise and allow for remote/telephonic supervision;
  5. Allow for faster licensure/certification of certain health care professionals;
  6. Take steps to temporarily waive medical malpractice insurance policy terms that may prevent insurance coverage of a health care professionals work responding to the COVID-19 pandemic in other states.
  7. Allow medical students to treat patients under the supervision of licensed medical staff, as appropriate; and
  8. Allow for signature-less prescription drug deliveries to prevent the spread of the virus between recipients and delivery personnel.

The recommendations follow HHS’s relaxation of telehealth reimbursement requirements under Medicare, Medicaid, and CHIP, as well as certain provisions of the HIPAA Privacy Rule. However, the HHS waivers do not address issues presented by state-level variations in the regulation of the health care industry, such as the ability of health care providers to practice across state lines or establish patient-provider relationships through telehealth platforms or in person.

Following Secretary Azar’s letter, more states may adopt these recommendations to increase access to telehealth services and establish a more consistent approach across the nation.