Permanency for Out of State Telehealth Services? Arizona Seeks to Make Permanent Changes to Licensure Requirements

On January 11, 2021, Arizona Governor Doug Ducey delivered the “State of the State” address in which he outlined his vision for 2021, focusing on the State’s response to the COVID-19 pandemic (the “Pandemic”), the distribution of the vaccine, and other COVID-19 related and unrelated priorities.  Governor Ducey’s priorities are summarized in the Governor’s 2021 Arizona Resilient Policy Book (“2021 Policy Book”)

As set forth in his 2021 Policy Book, Governor Ducey seeks to build on the telehealth exception that he introduced in his Executive Order 2020-17 (“EO 2020-17”) back in March 26, 2020 which, among other things, allows the issuance of a provisional Arizona medical licenses to any physician who is licensed and in good standing in any other state or the District of Columbia.  With such a provisional license, out-of-state physicians are able to consult with Arizona residents without needing to go through a formal Arizona license application process.  By its terms, EO 2020-17 only applies during the Pandemic and expires upon the expiration of the Governor’s emergency declaration.

Given the temporary nature of EO 2020-17 and its provision regarding the issuance of provisional licenses, Governor Ducey’s legislative priorities for 2021 include the passage of legislation that would permanently allow Arizona residents to receive telehealth services from any health care practitioner so long as they are licensed in one of the fifty (50) states or the District of Columbia. As proposed by Governor, the legislation follows recent trends by the Centers for Medicare and Medicaid Services and other states looking to make telehealth exceptions during the Pandemic, a more permanent solution going forward.[1] If the Governor is able to convince legislators in his state to pass such legislation, Arizona could be the first state in the US to permanently allow out-of-state licensed practitioners to render telehealth services to its residents.

In the 2021 Policy Book, Governor Ducey highlights the inequities of current Arizona law around the ability of Arizona citizens to access the services of physicians licensed outside of Arizona.  For example, if an Arizona resident wants to access the services of a physician specialist who is licensed in another state but not licensed in Arizona, current law (without the benefit of EO 2020-17) requires that he/she must travel to the physician specialist’s home state in order to consult with the physician specialist.  Given the expense of traveling to another state to receive physician services, Governor Ducey concludes that Arizona residents with means have access to a level of medical services that is not otherwise available to most Arizona residents.  As stated in the 2021 Policy Book, Governor Ducey concludes that, “specialty doctors should not only be accessible via an expensive flight and hotel stay. If a specialty provider is willing to do a consult via telehealth, Arizona patients should have easy access to those services without unnecessary travel expenses and Arizona is going to lead the way on this.”   Finally, in reference to EO 2020-17 and the flexibility it affords Arizona patients seeking the services of out-of-state licensed physicians, Governor Ducey concludes that, “if it’s safe and it works during a pandemic, we should embrace it when we’re not in an emergency as well.”  Therefore, Governor Ducey is asking the Arizona legislature to enact legislation that would make permanent the licensing flexibilities built into EO 2020-17.

In addition to making the above legislative proposal, Governor Ducey is requesting that the legislature expand on Arizona’s HB2569, passed in April of 2019, which allows a person who has held an out-of-state occupational license for at least one year to practice their profession in Arizona as long as they abide by the outlined stipulations, including being a current certified or licensed professional in good standing, and do not have any pending complaints, allegations or investigations relating to unprofessional conduct. The legislation would remove the limitation on location of treatment and expand healthcare coverage to those in rural areas or with limited mobility.

While there is growing support for making telehealth exceptions created during the Pandemic permanent – see industry leader statements on Push for Permanency – there are those who worry that it is unsafe to allow individuals to receive healthcare services from practitioners licensed in other states. For example, in November 2020, a joint committee of the Idaho legislature considered a bill pushing for telehealth reform, the proposed bill was met with pushback from representatives of incumbent licensed health professions who challenged the position that Idaho patients receive care from out of state practitioners, even though every state has essentially identical license requirements.

Other states, including Pennsylvania, Missouri, Montana, and Utah, are following Arizona’s lead and are looking to enact telehealth reforms that make permanent changes to the telehealth services rendered in the state.

FOOTNTOES

[1] See the following recent blog posts which discuss federal level changes for individuals living in rural areas, seeking access to healthcare: “Permanent Expansion of Medicare Telehealth Services” and “The Permanency for Audio-Only Telehealth Act: A Matter of Healthcare Equity?”.