As we often tell our clients, practicing telehealth is a moving target. Telemedicine in the United States operates under a complex regulatory framework that includes federal guidelines and state-specific laws. Complicating matters further, during the COVID-19 pandemic, temporary measures were introduced to expand telehealth access, and many of those have been extended or made permanent. Given the dynamic nature of telemedicine regulations, healthcare providers should stay informed about both federal and state policies to ensure compliance and optimal access to telehealth services. 

Federal Regulations: 

Recent legislation has extended numerous Medicare telehealth flexibilities that were initially introduced during the COVID-19 public health emergency through March 31, 2025. These extensions aim to maintain broader access to telehealth services for Medicare beneficiaries and allow the Federal government to enact more thoughtful permanent regulations. Stakeholders are closely monitoring these timelines to understand their implications on telehealth practice. 

Authorized providers can prescribe controlled substances via telehealth if they meet specific criteria. Under the Ryan Haight Act, a provider must conduct at least one in-person medical evaluation before prescribing controlled substances via telehealth. During the COVID-19 pandemic, however, the Drug Enforcement Administration (DEA) and Department of Health and Human Services (HHS) waived the in-person evaluation requirement provided: (i) the prescription is issued for a legitimate medical purpose; (ii) the telehealth technology used allows for real-time, two-way audio and video communication and complies with HIPAA requirements; and (iii) the provider is licensed to practice in the state where the patient is located. The DEA and HHS are considering permanent regulations to allow greater flexibility for telehealth prescribing of controlled substances while ensuring patient safety. 

State Regulations: 

Medical licensure requirements, including telehealth licensure requirements, vary by state. Some states, like Florida, have implemented policies allowing out-of-state practitioners to deliver telehealth services without obtaining full in-state licensure, while others maintain stricter requirements. The Interstate Medical Licensure Compact facilitates multi-state licensure for physicians in 37 participating states. Several states are considering or have enacted legislation to make temporary telehealth waivers permanent, granting out-of-state practitioners the ability to deliver telehealth services without full in-state licensure. 

State Medicaid programs and private insurers have differing policies regarding telehealth reimbursement. Some states have enacted telehealth parity laws requiring insurers to reimburse telehealth services at rates comparable to in-person services, while others do not have such mandates. For practitioners practicing in multiple states, they must ensure that they stay on top of the differences in state-by-state telehealth parity law legislation. 

Standard of Care: 

The standard of care in telemedicine generally requires healthcare providers to exercise the same level of skill, knowledge, and care as they would in an in-person encounter, adjusted for the limitations and capabilities of the telemedicine setting. Telemedicine providers should be aware of liability concerns specific to telemedicine, such as missed diagnoses due to the inability to conduct physical exams, and take proactive steps to mitigate risks. 

Practitioners who practice telemedicine should take care to ensure the following: 

• The standard of care in telemedicine should align with the standard of care expected for a similar encounter conducted in person—quality of care may not be diminished simply because the interaction occurs remotely. 

• Telemedicine platforms upon which a provider practices telemedicine must be secure, reliable, and compliant with applicable laws. 

• It is ultimately the provider’s responsibility to: 

• inform patients about the scope, benefits, and limitations of telemedicine, including potential risks like technological failures; 

• document a thorough patient history and appropriate evaluation as meticulously as they would for an in-person visit; 

• ensure that they are practicing within their licensed jurisdictions and are compliant with the laws of the patient’s location; and 

• confirm that patients have access to follow-up care and a plan for emergencies or in-person referrals if needed. 

To the extent that clinical guidelines may differ in a telemedicine setting from a brick-and-mortar setting, many professional organizations, such as the American Telemedicine Association (ATA), offer specific examples of how to practice within the standard of care. 

Having advised many licensed professionals who practice telemedicine, it is imperative that all involved parties remain vigilant about the liabilities and pitfalls of practicing in the space. Licensed professionals mustn’t rely on outdated advice in this arena.