Arizona's 2021 Telehealth Expansion Law

Expanding Arizona patients’ access to telehealth and allowing practitioners licensed in other states to provide virtual care to patients in Arizona.

On May 5, 2021, Governor Ducey signed legislationeffective immediately, expanding Arizona patients’ access to telehealth and allowing practitioners licensed in other states to provide virtual care to patients in Arizona.1 The law applies only to telehealth services provided to patients physically located in Arizona at the time of the encounter.2 For patients outside Arizona (even Arizona residents on vacation), a practitioner must comply with the laws, regulations, and licensing requirements of the state where the patient is located. MICA members may call Underwriting with telehealth-related coverage questions. Practitioners should always confirm and document a patient’s physical location at the start of a telehealth visit.

The new Arizona law applies to licensed “health care providers” including physicians, post-graduate training permit licensees, physician assistants, advanced practice nurses, optometrists, psychologists, dentists, occupational therapists, physical therapists, pharmacists, behavioral health practitioners, chiropractors, athletic trainers, hearing aid dispensers, audiologists, and speech-language pathologists.3 The statute defines “telehealth” as health care, assessment, diagnosis, consultation, or treatment, and the transfer of medical data, using interactive audio, video, or other electronic media including asynchronous store-and-forward and remote patient monitoring technologies but not faxes, instant messages, voicemail, or email.Telehealth includes a telephone encounter between patient and health care professional only if the professional determines that a video encounter is not reasonably available due to the patient’s lack of technology, functional status or telecommunications infrastructure limits.5 For risk management purposes, practitioners choosing to use audio when video is “not reasonably available” should document their thought process by listing factors considered and confirming that audio care can safely and effectively address the particular patient’s needs.

In the coming months, the Governor will appoint 25 members6 to a new Telehealth Advisory Committee (TAC).7 TAC will send telehealth best practices recommendations to the Governor and the state legislature after reviewing national standards and relevant peer-reviewed literature. TAC may also hear testimony at public meetings8 to determine which services and patient populations are suitable for telehealth and to evaluate the efficacy of various communications mediums.9 By December 1, 2021, TAC will recommend specific health care services that are appropriate for telephone encounters.10 By June 30, 2022, TAC must recommend telehealth best practice guidelines for all telehealth encounters.11 Given the ongoing role that TAC will have in determining telehealth best practices, there remains uncertainty about the applicable standards and scope of telehealth in Arizona until TAC issues its guidance.

Practitioners who fail to comply with the guidelines and/or statutory provisions could risk licensing board disciplinary actions or malpractice lawsuits, alleging the failure constitutes a breach of the standard of care.

In the future, physicians and other health care professionals providing telehealth to patients in Arizona must adhere to the following new statutory requirements for telehealth care delivery:

    • Monitor and adhere to all best practice guidelines (Guidelines) adopted by TAC in the coming years.12

    • Consistent with the Guidelines, for every telehealth encounter, make a good faith effort to determine whether to provide telehealth instead of in-person care. Practitioners should exercise clinical judgment and consider each individual patient circumstances13 and whether the care requires physical interventions and/or close observation.14

    • Consistent with the Guidelines, make a good faith effort to select the appropriate communication medium for the telehealth encounter. Whenever reasonably practicable, a practitioner must select the medium which is judged to allow the most effective assessment, diagnosis, and treatment of the patient.15

    • When deciding whether to offer telehealth over in-person care and when selecting the type of telehealth encounter, clinicians should document their thought process in case they later need to defend their decision.

Other new statutory provisions related to care delivery include:

    • Except for Schedule II drugs and except as specifically prescribed by federal law, Arizona licensing boards are prohibited from requiring licensees with prescribing authority to examine a patient in-person prior to issuing a prescription.16 Schedule II drugs may only be prescribed after either a telehealth video exam or an in-person exam to the extent allowed by federal and state law.17 

    • A physical or mental health status exam may be conducted during a telehealth encounter.18

    • Patient informed consent for telehealth is still required, but can now be obtained electronically.19

The law also modifies Arizona insurance statutes to expand patient access and provider reimbursement. With some exceptions, private payers are required to provide coverage for telehealth video encounters if the same services would be covered in-person.20 During 2021, private insurers must provide coverage for services provided by phone if Medicare or AHCCCS offers such coverage.21 Beginning in 2022, coverage will depend on whether TAC determines that the service can be provided appropriately via phone.22 In addition, coverage for telephone encounters is limited to situations where (a) the practitioner determines that access to video services is not reasonably available due to the patient’s functional status, lack of technology, or telecommunications infrastructure limits, and (b) the patient requests the encounter or authorizes it at the start.23 Except for behavioral health or substance abuse disorder services, an existing practitioner-patient relationship is also required for telephone encounter coverage.24 Where there is coverage, private payers must reimburse practitioners at the in-person rate for equivalent services provided via video.25 This also applies to behavioral health and substance abuse disorder services provided by phone.26

The law is in effect (without the usual wait of several months), but adoption of TAC “Guidelines” for health care practitioners likely will not occur for 12 to 18 months. As guidelines, they presumably will reflect the best information available at the time and be designed to assist practitioners in clinical decision-making when using telehealth as a care delivery tool. Guidelines typically do not establish a standard of care or deviation from the standard of care. However, guidelines do inform the standard of care. The continued and likely expanded use of telehealth by practitioners will not wait for the TAC Guidelines. In the absence of TAC Guidelines, telehealth will continue to be governed by the applicable standard of care as set by each specialty and the statutes, regulations, and policy statements of Arizona licensing boards.

To view the footnotes for this article, click HERE.

The content of this publication or presentation is intended for educational purposes only; is not an official position statement of Mutual Insurance Company of Arizona (MICA); and should not be considered or relied upon as professional, medical, or legal advice or as a substitute for your professional judgment. Consult your attorney about your individual situation and the applicable laws. The authors, presenters, and editors made a reasonable effort to ensure the accuracy of the information at the time of publication or presentation but do not warrant or guarantee accuracy, completeness, or currency of such information. As medical and legal information is constantly changing and evolving, check for updated information and consult your attorney before making decisions.

Similar posts

Subscribe to Our Monthly Newsletter, MICA Insider 

Sign up to receive new articles, free resources, and industry updates relevant to running an independent medical practice.