Regulating health care professionals by way of licensure reduces the harm from inconsistent and negligent medical care. Each state has established its own rules over educational and performance standards that each physician, dentist, nurse, chiropractor, etc. must comply with to lawfully engage in patient care. While state boards actually regulate practitioners, it is a state's legislature that has oversight responsibility for the boards, dictate medical practice policies and establish licensure fees.
The historical basis for state regulation of the practice of medicine is the Tenth Amendment, or reserved powers clause, of the U.S. Constitution, which states "[t]he 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." Safeguarding the ideal of republican states, states have power to, among other things, provide police protection, regulate commerce, and preserve their citizens' public health, welfare and safety. As an expression of this power, states regulate the activities of professions that affect the health of their citizens.
Advances in technology have opened new doors of opportunity for many medically underserved communities in America. Because of relatively inferior rural access to specialty health care providers, citizens in these communities must often travel great distances to receive care, or forego medical treatment until it becomes urgent. Telemedicine technology increases physicians' capacity to serve these citizens and improves their access to health care. Yet, when medically underserved patients and physicians are located in separate states the issue of practitioner licensure arises. Licensure laws that regulate interstate telemedicine practice vary from state to state.
As shown in Table 1, states have passed a variety of laws to regulate interstate telemedicine practice, most having been enacted over the past five years. These licensure laws, like any other type of statute, have been shaped by their respective stakeholders, and can be considered either restrictive or reciprocal. Many states do not yet have statutes specifically related to interstate telemedicine licensure, the ramifications of which are discussed below.
Restrictive licensure laws require a practitioner to obtain a full license to deliver telemedicine care across state lines. Typically, states with restrictive licensure laws also have several exceptions (varying from state to state) that may release an out-of-state practitioner from the additional burden of obtaining such a license. Practitioners may not need a full license if:
Twenty states (see Table 2) require practitioners who seek compensation to frequently deliver interstate care to acquire a full license. If a practitioner serves several states, obtaining this license in each state could be an expensive and time-consuming proposition. Even if the practitioner never practices medicine face-to-face with a patient in another state, he/she still must meet a variety of other individual state requirements, including paying substantial licensure fees, passing additional oral and written examinations, and traveling for interviews. Full licensure ostensibly may decrease the likelihood that physicians will pursue interstate telemedicine opportunities.
Limited licensure provides telemedicine practitioners with an interstate license, a simplified application process and reduced licensing fees. Reciprocity, as mutual exchange of privileges, permits one state to recognize a license in good standing that a practitioner holds in another jurisdiction. In the three states (Alabama, California and Oregon) that have adopted this model, the licensee is explicitly not permitted to practice medicine in-person--only interstate telemedicine care is allowed. Similar to the drivers' license model, limited telemedicine licensure permits recognition of privileges in other states, and subjects a practitioner to the jurisdiction of the state where the patient resides.
For the most part, the success of reciprocal interstate telemedicine laws is unproven. Oregon and Alabama are presently developing the administrative rules to implement this license type, having passed their bills in 1999. In California applications for a reciprocal telemedicine license have been too sparse to indicate success. Until these laws have been fully implemented and their outcomes carefully tracked, it will be difficult to be sure whether this licensure model successfully regulates interstate telemedicine.
Twenty-seven states, and the District of Columbia, have not yet taken action regarding interstate telemedicine licensure (see Table 1). Typically, these states' medical practice statutes include language such as, "Practice of medicine and surgery means the diagnosis or treatment of, or operation or prescription for, any human disease, pain, injury, deformity or other physical or mental condition." In many cases, these clauses can be reasonably construed to consider patient care via telemedicine as the practice of medicine without explicitly stating so. And because the practice of medicine without a license is commonly punishable by a lengthy prison term, $10,000 fine, or both, it seems wiser to err on the side of caution when regularly delivering direct care to patients in these states.
| No action | Restrictive | Reciprocal |
|---|---|---|
| Alaska | Arizona | Alabama |
| Arkansas | Colorado | California |
| Delaware | Connecticut | Oregon |
| District of Columbia | Florida | |
| Idaho | Georgia | |
| Iowa | Hawaii | |
| Kentucky | Illinois | |
| Louisiana | Indiana | |
| Maine | Kansas | |
| Maryland | Mississippi | |
| Massachusetts | Missouri | |
| Michigan | Montana | |
| Minnesota | Nebraska | |
| New Hampshire | Nevada | |
| New Jersey | North Carolina | |
| New Mexico | Oklahoma | |
| New York | South Dakota | |
| North Dakota | Tennessee | |
| Ohio | Texas | |
| Pennsylvania | Virginia | |
| Rhode Island | ||
| South Carolina | ||
| Utah | ||
| Vermont | ||
| Washington | ||
| West Virginia | ||
| Wisconsin | ||
| Wyoming |
Over the past five years, there has been a steady increase in the number of states passing legislation that mandates full licensure for interstate telemedicine practice. As shown in Tables 2, by the end of 1999, 28 legislatures had not responded to interstate telemedicine licensure. However, 20 legislatures have passed a restrictive model, requiring full licensure for out-of-state telemedicine practitioners who do not meet the relevant exceptions. Because only three states have passed less restrictive, reciprocal licensure laws, it is difficult to assess their impact and reciprocity is a reasonable alternative for states to consider.
| No action | Restrictive | Reciprocal |
|---|---|---|
| 28 | 20 | 3 |
As the state agencies responsible for regulating practice of medicine, dentistry or nursing, each medical examination board has a direct interest in protecting its citizens from inadequate care, from practitioners inside and outside the state. From their perspective, the most effective way of protecting their citizens from negligent interstate care is to require a full license. This holds out-of-state physicians to the same standard of care and legal responsibility.
State medical, nursing or dentistry associations represent the professionals practicing in each state, and have a significant interest in interstate telemedicine licensure. Associations typically favor more restrictive licensure bills, but this has varied from association to association. Some have feared that their constituents would face increased competition if regulations for interstate telemedicine licensure were reduced. This argument is contingent upon there being a significant number of out-of-state practitioners who are interested in practicing interstate telemedicine.
By definition these organizations are interested in improving the access to health care for medically underserved populations, and recognize that telemedicine care can bring new opportunities for their constituents. Generally, these groups may favor a reduction of barriers to interstate telemedicine licensure, while supporting professional standards and jurisdictional responsibility to protect the welfare of patients.
Beyond the obvious altruistic rationale for expanding health care access to rural and medically underserved patients, hospital networks may have an interest in expanding their reach to capture a larger portion of the market in distant states. Remote telemedicine sites affiliated with a hospital network may provide a new patient source from which the hospital ultimately will derive referrals. For this reason, less restrictive interstate licensure laws would seem to benefit hospitals and their providers.
This category represents groups such as the National Council of State Boards of Nursing (NCSBN) or the Federation of State Medical Boards (FSMB) that have been focused on the needs of licensure from the national perspective. In the recent years, NCSBN has been actively promoting an interstate compact that would permit nurses in one state to be 'registered' (not fully licensed) in another state that had adopted the compact. In 1996, the FSMB introduced an interstate licensure model that promoted reciprocal, limited licensure for physicians. The models promoted by NCSBN and FSMB can be viewed on-line.
During an interstate telemedicine encounter, the location for legal purposes of the practitionerpatient encounter remains unresolved. Is the patient 'transported' to the physician's location, or is the physician 'transported' to the patient? The import of this question stems from the need to clarify where a negligent practitioner would be prosecuted in a malpractice claim. When a medical encounter occurs across state lines, does the practitioner become legally responsible for his/her actions in the state where the patient is located, where the practitioner is located, or both?
The Health Care Financing Administration's (HCFA) 1999 Medicare reimbursement rules suggest an interesting decision regarding this question of location (Schanz, 1999). HCFA's rules permit practitioner to practitioner teleconsultations to be reimbursed by Medicare in rural health professional shortage areas. Since HCFA permits consulting practitioners to be reimbursed according to the Geographical Practice Cost Index (a reimbursement scale that adjusts for the geographical variations in cost of living at the practitioner's location), it could be suggested that during a telemedicine encounter, the patient is 'transported' to the practitioner. Although HCFA explicitly states that this model is meant for Medicare reimbursement applications only, this is certainly one precedent for grounding the interstate practice of telemedicine.
Some similarity exists between the practicing of interstate telemedicine and the increasingly popular practice of purchasing products and services over the Internet from out-of-state vendors, or e-commerce. From airline tickets to clothing to vacations, consumers in one state can conduct a transaction with a business located in another state. When a transaction occurs, the vendor of the merchandise or service is thought to be 'transported' to the consumer's state. Technically, the transaction takes place in the consumer's state because it is the consumer's state sales and use taxes that apply, not the sales and use taxes in the vendor's state. If the purchase of a product or service is made in the consumer's state, then it would follow that the vendor is 'transported' to that state.
Admittedly, interstate medical care is more than simply a 'service' for which the patient is the consumer. That fact notwithstanding, the parallel of e-commerce suggests an alternative perspective where the physician (vendor) is transported to the location of the patient (consumer), and would be subject to the statutes and regulations in the patient's jurisdiction.
Taken together, both examples of interstate transactions suggest contrasting opinions about the legal jurisdiction governing a patient-physician teleconsultation. Typically, when competing perspectives exist, case law in our judicial system creates the precedent. To date, in the context of telemedicine, the court system has not ruled on a case pertaining to the location of the physician and patient, and so this matter remains unresolved. However, statutes and case law pertaining to interstate transactions and e-commerce are well established, and the appropriateness of their application to telemedicine consultations bears further study.
Schanz S J. State licensure issues. Orthopedic Technology Review, November, 1999, 1(4): 23.
