This blog is for educational purposes only and does not constitute legal advice. Contact healthcare legal counsel to obtain legal advice, or reach out to your state board for more detailed information.
Prior to the pandemic, telehealth was slowly gaining traction as a viable mode of service delivery for OTs, PTs, and SLPs. Providers and patients were beginning to appreciate its benefits (especially for patients in rural areas and pediatric patients living on federal land) but adoption was scattered. Some states, such as Georgia, explicitly authorized telehealth in their rehab therapy state practice acts, while others authorized rehab therapy telehealth via a separate, related statute. Still, rehab therapy practitioners in many states were not able to provide telehealth at all, and many state professional associations (such as those in Arizona) were advocating for legislative changes that would allow greater telehealth inclusion for rehabilitation providers.
Then, the pandemic changed the telehealth landscape almost overnight, forcing rapid adoption across the nation as states sought ways to maintain healthcare access while reducing the risk of infection. As a result, it’s more important than ever to understand the crazy patchwork of state statutes, executive orders, and federal requirements as you develop your practice’s telehealth program.
Am I allowed to provide telehealth services?
First, you must determine whether you are allowed to provide telehealth services by reviewing your state practice act and applicable state telehealth laws. Some states, such as Kentucky (see KY Rev. Stat. Ann 26:37.200), address telehealth authority right in the PT practice act. Other states, such as Rhode Island, authorize rehabilitation providers to use telehealth services under another statute. In fact, Rhode Island’s Telemedicine Coverage Act does not specifically identify PTs, OTs, or SLPs, but broadly includes all healthcare professionals. Then, there are the states that have not spoken to whether rehabilitation providers can practice telehealth (such as Wyoming and Alabama). While it can be a long, confusing research project, confirming that you are allowed to practice telehealth in your state is essential.
If your state’s practice act does not reference telehealth, review the Center for Connected Health Policy’s guide on state telehealth laws or this rehab-specific 50-state survey. There may be a statute that authorizes you to provide telehealth services, and these resources will point you in the right direction. If you still cannot find an applicable statute—or if you think the law in your state may be silent on your ability to deliver telehealth services—contact your state board and ask for a legal telehealth reference. If the law is still silent about your profession’s ability to practice telehealth, proceed with extreme caution and at your own risk. It is better to provide services authorized by law than to practice in a gray area that could jeopardize your license.
Which law should I follow—my governor’s COVID-19 executive order or my state practice act?
When states officially declare a state of emergency, governors gain the authority to quickly enact laws in order to protect the public. When COVID-19 began sweeping through the country, many governors enacted executive orders that broadly authorized all healthcare professionals to provide telehealth services. Even better, many of those executive orders also mandated insurance coverage of telehealth. It was like getting everything on your wish list and then some, as most pre-pandemic telehealth laws did not account for payer reimbursement. And some executive orders went even further, recognizing out-of state licenses and suspending requirements around patient co-pays and patient status. (Previously, for example, patients often had to be “established” in order to receive telehealth treatment. Many executive orders removed this requirement, thus allowing providers to see new patients via telehealth.)
So, during the pandemic, refer to the applicable executive order in your state for guidance on whether you can provide telehealth. If there is a gap in the executive order (e.g., it doesn’t address informed consent requirements), reference your state law. If there is a conflict between your state law and the executive order, follow the executive order, as it is the governing law during the emergency.
When will the executive order authorizing my profession to provide telehealth expire?
Remember that emergency executive orders are only temporary. If you are providing telehealth services under the executive order, you will have to revert back to your old state laws after the cessation of the public health emergency—and if your state law doesn’t authorize telehealth services, you cannot continue to provide them.
Review the executive order to see if there’s an expiration date. Most do not have expiration dates, instead linking the order’s expiration to the expiration of the public health emergency. If that’s the case, then you must monitor the news, the governor’s website, and your state’s health services department for updates.
Can I use the telephone to provide telehealth services, or do I have to use live video and audio technology?
Many state practice acts and telehealth statutes include specific definitions of what constitutes sanctioned telehealth service delivery—including technology requirements. Make sure you understand that definition—and that you only provide services in accordance with it. Telehealth definitions can be:
- Broad, covering all types and variations of remote patient services (e.g., “use of information and communication technologies consisting of telephones, remote patient monitoring devices, and other electronic means” as set forth in the Delaware Occupational Therapy Practice Act); or
- Restrictive, covering only certain types of technology (e.g., “audio-visual communication, not including standard telephone, facsimile, or electronic mail” as defined by Louisiana’s telehealth statute N.R.S. 629.515(b)).
During the pandemic, many executive orders have expanded the definition of telehealth services, which is why you must review your state’s applicable executive order. Don’t be surprised if it allows telehealth service delivery via any type of electronic communication! Providing healthcare services while simultaneously stopping the spread of COVID-19 requires drastic measures—so you may be authorized to use phone, text, email, or live video for telehealth during the pandemic.
Do I have to be licensed in the state where my patient is located?
In order to provide telehealth services, you typically must be licensed in the state where your patient is physically located. During the pandemic, some states are temporarily expediting the licensing process or accepting out-of-state licenses. Be sure to carefully review the executive order of the state that the patient is in before providing any services to him or her. Some states, such as New York, only waived state licensure requirements for select providers (including physical therapists) and still require state licenses for all other professionals. But, even the providers who were marked exempt from the standard New York state licensure requirement had to jump through one more hoop: they had to be licensed in good standing in another state.
Obtaining and maintaining multiple licenses can be cumbersome and expensive. The PT Compact creates license portability by granting reciprocal license recognition for all states that have signed the compact agreement. This map identifies the states that have joined the Compact.
If your patient is in a state that has signed the license compact agreement—and you are in another state that has also signed the agreement—then your license is portable, and you can provide services across state lines. That said, it’s always a good idea to review your state practice act and/or call your licensing board to confirm the portability of your license.
The AOTA is also working on creating an interstate professional licensing compact for occupational therapist license portability.
Lastly, if you are providing telehealth services to patients on federal land, you only need to be licensed in good standing in your state. But again, check with your state board to confirm your license requirements.
Do I have to obtain informed consent before delivering telehealth services—and what is the scope of informed consent?
Obtaining informed consent from your patients before you provide telehealth is not only best practice, but also may be required by state law. Collecting a patient’s informed consent helps you address potential privacy and security issues as well as account for other unique telehealth considerations. Please note that informed consent is not necessary for in-person visits, nor is it required by Medicare.
Before providing telehealth, review your state law to determine:
- whether or not informed consent is required;
- how often you must collect informed consent (e.g., only upon evaluation versus prior to each treatment session);
- which type of informed consent—written or verbal—is required (see the Connecticut Telehealth Services Statute for an example); and
- the scope of informed consent, which may address:
- acceptable treatment methods and limitations,
- the patient’s right to revoke consent to telehealth services, and
- the pros and cons of providing telehealth services, including the privacy and security risks.
Check out this sample template—or contact your state’s telehealth resource center. Customize your template to account for all the requirements put forth by your state practice act, as applicable.
Can therapy assistants or students provide telehealth treatment—and can I use telehealth to supervise them?
Many states that have authorized PTs, OTs, and SLPs to deliver telehealth services have also extended this authorization to therapy assistants. However, the rules for service delivery and supervision may not be clear (especially if they’re outlined in pandemic executive orders), so review your state law carefully and call your state board if you have questions. State laws may have different supervision requirements based on the therapy assistant’s competence and the practice area. For example, Idaho allows occupational therapists to use telehealth to supervise at the general or routine supervision level—but not at the direct-line-of sight level.
As a general rule, you should not allow students to deliver therapy services, because it’s not safe, and payers do not reimburse for unlicensed student services. So, treat it like an in-person visit: deliver the services yourself, and provide clinical instruction to the student as you do so. If the school allows students to complete clinical education requirements via telehealth, they can probably sit in on a session—and they may be able to try some telehealth techniques. However, you must always be present during the video call or telephone communication, and you should check with your state licensing board to confirm that this is appropriate.
What else do I need to know about using telehealth in my rehab therapy clinic?
Review your state practice act and any applicable telehealth statutes carefully and often. Every state has different requirements, and you should know what is required before you start practicing telehealth. For example:
- Do you have to provide the patient with your license number and contact information (as required by Connecticut)?
- As the evaluating occupational therapist, are you responsible for determining when in-person visits are appropriate (as required by Delaware)?
- Are you required to register with the Telehealth Business Registry (as required by Alaska)?
- Are you required to use secure and HIPAA-compliant technology (as required by Iowa)? (Note: In this case, failure to comply with this requirement can result in federal penalties in addition to state sanctions or license suspension.)
- Do you have to document in the clinical record that the services were provided using telehealth (as required by Washington state)?
Telehealth visits are not the same as in-person visits, which is why it’s crucial that you check off every single state-issued requirement.
If there are both federal and state telehealth laws that apply to me, which one should I follow?
Federal healthcare programs include Medicare, Tricare, and the Veterans Affairs (VA) administration. Generally, federal laws trump state laws, so if the federal and state laws that apply to you conflict, follow the federal law requirements. But—and this is an important but—if the state law is more restrictive, then you should follow the state requirement. This means you may have to follow two different laws and two different sets of requirements at the same time. Review each law carefully, and call your state board if you have any questions.
Like state governors, the Centers for Medicare and Medicaid Services (CMS) has emergency authority during a public health emergency. This is called 1135 waiver authority. When the President declared a public health emergency, CMS enacted its 1135 waiver authority to allow Medicare to reimburse PTs, OTs, and SLPs for remote services and telehealth services. (See section FF of this document.) At the time of this article’s publication, licensed rehab therapy providers can deliver telehealth and remote services under Medicare Part B in the private practice outpatient setting, skilled nursing facilities, and outpatient hospital settings.
As with state executive orders, the 1135 waivers will expire when the emergency is over—and rehabilitation therapists will no longer have authorization to provide telehealth services to Medicare patients. It’s crucial that you continually monitor news and updates from the APTA, ASHA, and AOTA websites to ensure that you discontinue telehealth services when the waivers expire (unless additional measures are taken to extend your telehealth privileges beyond the public health emergency).
As confusing and complicated as this all seems, it unfortunately only gets worse when you consider other payers. This crazy patchwork of state laws, orders, and federal laws does not always match up with commercial payer policies. So, even if you’re allowed to provide telehealth services, you’re not guaranteed to receive payment for those services. That’s why you must individually review your payer policies to determine their stance on—and requirements for—telehealth reimbursement.
I believe that OTs, PTs, and SLPs have what it takes to successfully navigate through the labyrinth of telehealth regulations—and I also believe that over time, as we familiarize ourselves with these regulations, it’ll become easier and easier to comply. Until then, WebPT is here to help.