Health Care Professionals Practicing Via Telehealth

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 17</CFR> <DEPDOC>[Docket No. VA-2022-VHA-0020]</DEPDOC> <RIN>RIN 2900-AQ59</RIN> <SUBJECT>Health Care Professionals Practicing Via Telehealth</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) adopts as final, with changes, a proposed rule to amend its medical regulations that govern VA's health care professionals who practice health care via telehealth. This final rule implements the authorities of the VA MISSION Act of 2018 and the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. This final rule enables VA to maximize health care resource utilization and provide safe and convenient national health care to veterans using telehealth. It also strengthens VA's role in supporting national and State responses to war, terrorism, national emergencies and natural disasters. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective November 3, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Dr. Kevin Galpin, Executive Director, Telehealth Services, Office of Connected Care, Veterans Health Administration, (404) 771-8794. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> In a document published in the <E T="04">Federal Register</E> (FR) on August 23, 2022, VA proposed to revise its regulations that govern a VA health care professional's practice via telehealth. 87 FR 51625. VA provided a 60-day comment period, which ended on October 24, 2022. We received a total of 18 comments, ten of which fully supported the proposed rule. We thank the commenters for their comments and do not further address them below. The remaining comments, some of which were generally supportive of the rule, raised issues and concerns that are grouped together by like topic and addressed below. We make minor changes to the rule as described below. <HD SOURCE="HD1">Comments Related to Preemption of State Law</HD> We received two comments regarding VA's preemption of conflicting State laws. One commenter stated that VA is prohibited by the Tenth Amendment of the Constitution from requiring States to issue or continue licenses to health care professionals who do not meet State licensing requirements, such as the requirement that the health care professional's supervisor is providing in person supervision or the requirement that the trainee be supervised by a health care professional who is licensed in the same State as the trainee. The commenter requested that VA clarify that it is not commandeering States to license those employees who do not meet State requirements for a license. We do not make any changes based on the comment. The Tenth Amendment of the United States Constitution provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. However, VA's authority to furnish health care to veterans has not been reserved to the States or the people. Under Article I, section 8, Congress has the power to “provide for the common Defence and general Welfare of the United States”; to “raise and support Armies”, and to “provide and maintain a Navy”; and to “make Rules for the Government and Regulation of the land and naval Forces”. See Art. I, sec. 8, cls. 1, 12-14. Congress also has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers”. See Art. I, sec. 8, cls. 18. Congress exercises its authority under some or all of these clauses when enacting veterans' benefits. See, <E T="03">e.g., Torres</E> v. <E T="03">Texas Dep't of Pub. Safety,</E> 597 U.S. 580 (2022). Exercising these powers, Congress, under section 7301(b) of title 38, United States Code (U.S.C.), established that the primary function of the Veterans Health Administration (VHA) within VA is to provide a complete medical and hospital service for the medical care and treatment of veterans. Generally, VA is allowed to employ medical professionals so long as they are licensed “in a State,” see, <E T="03">e.g.,</E> 38 U.S.C. 7402(b)(1)(C), rather than in every State in which they or their patients will be located while providing care through VA. See also title 38, Code of Federal Regulations (CFR) 17.419(b)(1)(i) (providing that a VA health care professional may practice in any State “irrespective of the State where they hold a valid license, registration, certification or other State qualification”). Specific to the provision of care through telehealth, Congress explicitly provided that, notwithstanding any provision of law regarding the licensure of health care professionals, a VA health care professional may practice at any location in any State, regardless of where the health care professional or the patient is located, when using telehealth to provide treatment to an individual under chapter 17. 38 U.S.C. 1730C(a). Section 1730C(d) further states that this section supersedes any State law to the extent that the State law is inconsistent with section 1730C, and that no State shall deny or revoke a license, registration, or certification who otherwise meets the qualifications of the State for holding such credential on the basis of their practice of telehealth at VA. Therefore, the rule does not encroach on any rights reserved to the States or to the people and is not a violation of the Tenth Amendment to the U.S. Constitution both because Congress has authority to enact laws regarding veterans' benefits under Article I, section 8, and because Congress asserted Federal supremacy under clause 2 of Article VI of the Constitution, which provides that the Constitution, and the laws of the United States made in pursuance thereof, are the supreme law of the land. In enacting section 1730C, Congress exercised its authority under this clause (commonly referred to as the supremacy clause) to preempt inconsistent State law. We clarify that through this rulemaking, we are not requiring or commandeering a State to grant a license to those VA employees who do not meet the State requirements to receive a license, registration, certification, or other requirements. Rather, we are preempting any provisions of State requirements as applied to VA health care professionals to the extent that such provisions are inconsistent with a VA health care professional's practice via telehealth. If a State requirement is inconsistent with the VA employee's ability to carry out their Federal duties, that State requirement will have no force or effect on the VA employee when carrying out their VA duties. As explained above, section 1730C(d)(2) confirms that no State shall deny or revoke the license, registration, or certification of a covered health care professional who otherwise meets the qualifications of the State for holding the license, registration, or certification on the basis that the covered health care professional has engaged or intends to engage in telehealth at VA. However, the States will still determine whether the health care professional otherwise meets the State qualifications for holding the license, registration, or other requirement. We received one comment addressing limitations in the Controlled Substances Act (CSA) and other applicable Federal law, regulation, and policy as applied to VA, to include possible limitation by State law through such authority. The commenter referenced practice guidelines regarding the prescribing of buprenorphine, citing 86 FR 22439 (April 28, 2021), that ordinarily require prescribers to be licensed to treat patients in the State in which the patient is located. As the commenter acknowledged, the practice guidelines specifically exempt Federal practitioners who are acting within the scope of their Federal employment. We do not make a substantive change based on the comment but make a non-substantive clarifying change to 38 CFR 17.417(b)(3) to avoid any potential confusion regarding the authority of VA health care professionals to prescribe controlled substances via telehealth and the impact of State law as referenced by Federal authority. State law that would conflict with VA health care professionals prescribing via telehealth is not applicable to VA health care professionals, but Federal standards regarding prescribing via telemedicine are applicable. VA stated in proposed § 17.417(b)(3) that its health care professionals are subject to the CSA and other “applicable Federal law, regulation, and policy,” 87 FR 51631, whereas the provision it is replacing (currently in § 17.417(b)(1) requires health care professionals to comply with “the laws and practice acts of the health care providers' State license, registration, or certification” in addition to applicable Federal law. VA views the change as being authorized by, and consistent with, the relevant statutory authority. Specifically, the CSA creates a number of standards for a prescription to be valid. See, <E T="03">e.g.,</E> 21 U.S.C. 829. Additional standards are applicable to prescribing via “telemedicine.” See, <E T="03">e.g.,</E> 21 U.S.C. 802(54) (authorizing prescribing a controlled substance when the prescriber is, inter alia, communicating with the patient via “a telecommunications system referred to in section 1395m(m) of title 42.”). These standards created by the CSA are among the applicable Federal laws addressed in proposed 38 CFR 17.417(b)(3). The CSA also references “applicable . . . State laws” into the “practice of telemedicine.” 21 U.S.C. 802(54). VA health care professionals are specifically authorized to practice medicine through telehealth notwithstanding State law. 38 U.S.C. 1730C(a). VA does not view a conflict as existing between the two provision ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 69k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━