The new federal regulation 38 CFR § 17.417 will allow VA doctors, nurses and other health care providers to administer care to veterans using telehealth or other virtual technology to anywhere in the United States that trumps states rights.  The agency issued its final rulemaking May 11, 2018, which will go into effect June 11, 2018. 

Congress has required other Departments and agencies to conduct telehealth programs. See, e.g., Pub. L. 114-328, sec. 718(a)(1) (“the Secretary of Defense shall incorporate, throughout the direct care and purchased care components of the military health system, the use of telehealth services”). While VA does not have an analogous mandate, several statutes confirm that Congress intends for VA to operate a national health care system for beneficiaries that includes telehealth. Congress has required the Secretary “to carry out an initiative of teleconsultation for the provision of remote mental health and traumatic brain injury assessments in facilities of the Department that are not otherwise able to provide such assessments without contracting with third-party providers or reimbursing providers through a fee basis system.” See 38 U.S.C. 1709A(a)(1). Congress has authorized the Secretary to “waive the imposition or collection of copayments for telehealth and telemedicine visits of veterans under the laws administered by the Secretary.” See 38 U.S.C. 1722B. And, as recently as December 2016, Congress required VA to initiate a pilot program to provide veterans a self-scheduling, online appointment system; this pilot program must “support appointments for the provision of health care regardless of whether such care is provided in person or through telehealth services.” See Pub. L. 114-286, sec. 3(a)(2).

In an effort to furnish care to all beneficiaries and use its resources most efficiently, VA needs to operate its telehealth program with health care providers who will provide services via telehealth to beneficiaries in States in which they are not located, licensed, registered, certified, or otherwise authorized by the State. Without this rulemaking, doing so may jeopardize these providers’ credentials, including fines and imprisonment for unauthorized practice of medicine, because of conflicts between VA’s need to provide telehealth across the VA system and some States’ laws or requirements for licensure, registration, certification, that restrict the practice of telehealth. A number of States have already enacted legislation or regulations that restrict the practice of interstate telehealth.