Department of Veterans Affairs Releases Long-Awaited Proposed Rule to Allow Telehealth Services Across State Lines

On Friday, September 29, the Department of Veterans Affairs (VA) released its long-awaited proposed rule amending medical regulations to improve access to care for beneficiaries regardless of patient or provider locations. Specifically, the rule enables health care providers to provide telehealth services to beneficiaries across state lines in an effort to increase patient access to care. This “modern, beneficiary- and family-centered health care delivery model” – 38 CFR 17.417 – will leverage novel information and telecommunication technologies, such as apps on a patient’s phone or computer, to connect patients and providers throughout the country.

The proposed rule provides a concrete outline for how the Trump Administration intends to utilize the increasingly popular telehealth technology to care for veterans. In fiscal year (FY) 2016, VA providers had 2.17 million telehealth episodes serving over 700,000 beneficiaries. While this accounted for only 12 percent of all beneficiaries that sought care from the Veterans Health Administration (VHA), 45 percent of these patients were from rural communities. Telehealth technology is incredibly effective at expanding access to care for patients in remote locations.

As a national health care provider, the VHA must ensure that its beneficiaries all receive an adequate level of care regardless of location at the time which health care services are provided. As the proposed rule notes, a focused effort to ensure beneficiaries in remote, rural or medically underserved areas is necessary to level accessibility to those with on-site services available. Telehealth will improve the ability of the VHA to take these clinical services to beneficiaries in a convenient, cost-effective and institutionally efficient matter. Congressional and Administration-based efforts to date have demonstrated the desire to make this transition, evidenced by authorization of department-wide initiatives, copayment waivers and pilot programs.

Today, all VHA providers are licensed in at least one state, but are restricted from practicing in states in which they are not licensed. The proposed rule would exercise federal preemption of state licensure and allow licensed providers to provide services, regardless of the patient’s location. Previously, VA medical centers have held off on expansion of telehealth services outside of federal property, such as a beneficiary or provider’s home, for fear of repercussions. To date, issues arising from disparities between state law and the VA health care practice have impeded the integration of these services. While some states have already begun to regulate the practice of interstate telehealth, the VA would exercise the federal preemption of state licensure, registration, and certification laws, rules and regulations for all VA providers offering telehealth services within the scope of their employment. Furthering the VA’s capabilities to provide telehealth services across state lines would allow these providers to treat more patients in a more timely fashion.

The proposed rule is in stark contrast to Medicare rules, which still require patients to reside in certain locations to receive covered telehealth services. VHA could be paving the way for changes to the Medicare program as the benefits to increased access to care, as well as cost-effective care, are demonstrated.

At a time where the country faces the perils of a deadly prescription opioid epidemic, however, the proposed rule is absent of any language around prescribing practices. The rulemaking does not affect the VA’s existing requirement for compliance with state regulations on prescribing and administering controlled substances. Health care providers are still required to abide by limitations put forth in the Controlled Substances Act alongside any additional federal regulations that apply to the VA.

Advancing access to health care services for individuals in remote, rural or medically underserved areas will also benefit those dealing with serious mental illnesses, such as anxiety, depression or agoraphobia. Research conducted by the VA in 2016 clearly demonstrates the improvement that telehealth provides in terms of outcomes, especially in the instance of mental health. VA beneficiaries receiving mental health services through synchronous video telehealth saw a 39 percent reduction in acute psychiatric intakes. Data also supports the use of telehealth for the treatment of general or chronic condition management. For those with limited mobility, telehealth offers an alternative to receiving care without the stress of traveling to receive care. For many, receiving care in the comfort of their home may also lead them to take a more proactive role in their health care, thus improving outcomes.

As a part of the proposed rulemaking, VA solicited comments and input from a variety of stakeholders, including the National Governors Association, Association of State and Provincial Psychology, National Council of State Boards of Nursing, Federation of State Medical Boards, Association of Social Work Boards, and National Association of State Directors of Veterans Affairs. Each of these stakeholders, among others, responded favorably to the inquiries and noted their support of the proposed rulemaking.

The proposed rule will be published in the Federal Register on Monday, October 2, with an open comment period lasting 30 days.