Traditional medical practice is being rapidly transformed by such factors as managed care, the politics of health care reform, and technological and other medical advances. Such advances, which include telemedicine, offer opportunities for improved health care delivery. One aspect of these changes is that medical practice now may be conducted over wide geographic areas. This challenges the current state-based medical licensure system to facilitate the growth of this evolving mode of patient care while maintaining a high standard of medical care and ensuring public protection.
The Governing Council has issued this informational report in an effort to proactively address young physician concerns regarding the changing environment of medical practice, increased mobility of the physician population, and new technologies such as telemedicine that impact on physician licensure.
Introduction
Each of the 50 states, the District of Columbia, and the United States territories and their respective boards of medical licensure have rules that govern the ability of health care practitioners, including allopathic and osteopathic physicians, to practice medicine. These laws were enacted under the police power reserved to the states by the U.S. Constitution to adopt laws to protect the health, safety and general welfare of their citizens. This gives the states the ability to effectively monitor the quality of persons wishing to practice medicine in that area. In addition, most state statutes delegate authority for enforcing licensure laws to the state Boards of Medical Examiners. Osteopathic physicians are licensed for the full practice of medicine and surgery in all 50 states. Each state determines the tests and procedures for licensing its physicians. In some states, the same tests are given to DO's and MD's; other states administer separate licensing exams.
Until recently, a physician could provide an opinion or interpretation to a physician in another state who had primary patient care responsibility, and this practice was not regarded as practicing out of his/her state. Today, however, the out-of-state practice of medicine without a license is prohibited, whether the physician is treating the patient in person or from a distant location. In this day and age, a physician is considered to be practicing medicine in the state where the patient is located and is subject to that state’s laws regarding medical practice, which typically means a license in that particular state is necessary. Thus, state boards have denied requests from out-of-state psychiatrists, for example, to conduct therapy with their patients located in another state via telephone or videoconferencing. Imprecise definitions regarding just what is "out-of-state" medicine (e.g, phone calls from patients who live in one state, but who seek care from an adjacent state, across a state line for care) also abound. Some states consider all out-of-state practice to be telemedicine, whether it utilizes phone calls, e-mail or online discussions. Even definitions from organizations such as the American Medical Informatics Association, the United States Department of Commerce, and various state and specialty medical societies vary considerably.
Telemedicine in particular has crystallized the tension between the states’ role in protecting patients from incompetent physicians and protecting in-state physicians from out-of-state competition, and the desirability of ensuring patients’ access to the highest quality medical advice and treatment possible, wherever located.
State Licensure
Historically, physicians have been held to the standard of care practiced by the average member of the medical profession practicing in the same medical specialty and same geographic location. This community-based system allows state ladaptation of regulations and requirements to local standards, needs and expectations. The system also has created significant variation in licensing requirements from state to state. The AMA publication, "State Medical Licensure Requirements and Statistics," illustrates the various similarities and differences associated with state licensure.
A physician who seeks multiple state licenses for whatever reason may find the current system burdensome in terms of the time, expenses and varying licensure requirements. A patchwork of medical record, patient confidentiality, continuing medical education requirements, and mandatory reporting laws, along with differing medical practice acts, complicate the process. Difficulties are further exacerbated for physicians who practice telemedicine.
Licensure "by endorsement" is the process by which a physician licensed in one state seeks a license from a second state. A physician who physically practices in his/her home state but provides consultative or telemedicine services to patients in five other states, even adjacent states, must complete one in-state and five out-of-state applications for licensure, with six sets of accompanying documentation, and pay six registration fees. Each state has an independent application process with separate requirements. Fees for licenses by endorsement, including processing, application, and administrative fees, range from $1,108 in California to $20 in Pennsylvania; the average is $339. Moreover, most states require a physical appearance for some applicants before the local licensing board, which contributes to the time and expense.
Also, many states require the current licensing exam to be taken and passed if it has been more than 7 to 10 years since the applicant passed the then-current exam. There can be considerable expenses in terms of time and cost associated with preparing and taking the exam, particularly for specialists, who have limited the scope of their practice and who may have had no recent exposure to some areas covered in the general exam. For physicians who have only one or two years of postgraduate training, or who are international medical graduates, the application requirements in some states are more prohibitive.
Legislation Governing the Practice of Medicine Across State Borders
A growing number of states have enacted legislation specifically addressing the issue of physician licensure and the practice of medicine across state borders. The modifications made by these states have been either to require a physician to obtain a special license to engage in out-of-state practice of medicine or to obtain a full unrestricted state medical license.
Alabama chose to restrict the practice of medicine across the state border through a special license arrangement. The practice of medicine is redefined to include the rendering of a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient located in Alabama by a physician outside the state. Informal consultation between a physician in Alabama and a colleague in another state is not included in the new definition, provided that the consultation is conducted without compensation to or the expectation of compensation to either physician, and does not result in the formal rendering of a documented medical opinion by the physician outside of Alabama. Similarly, physicians who practice across state lines in a medical emergency, or on an irregular or infrequent basis (defined as less than ten occurrences per year or involving less than ten patients per year or less than one percent of the physician's practice) are exempt from the special license requirement. Alabama added one caveat that limits special licensure to only those physicians who are practicing in states which have reciprocal legislation permitting Alabama physicians to cross their state border to practice medicine.
An Arizona statute is a good example of a consultation provision that creates an exemption from licensing requirements. It expressly provides that the state licensure requirements do not apply "...to any doctor of medicine residing in another state, federal jurisdiction or country who is authorized to practice medicine in that jurisdiction, if he engages in actual single or infrequent consultation with a doctor of medicine licensed in this state and if the consultation regards a specific patient or patients."
Colorado permits the Colorado Board of Medical Examiners to issue a limited Colorado medical license to physicians who are affiliated with Shriners Hospital for Children and licensed to practice in another state to treat Shriners’ patients either in the state or via telemedicine.
Other states decided to require a physician providing patient care from an out-of-state location to obtain full unrestricted state medical licensure. In Arkansas, a physician located outside the state but who performs any act that is part of patient care initiated in Arkansas, including interpretation of radiologic studies or pathologic material that would affect the diagnosis or treatment of the patient, is deemed to be practicing medicine in the state and now requires full state licensure. Full licensure is not necessary where the out-of-state physician is a medical specialist who provides only episodic consultation services, or a physician providing services to a medical school, or the service provided is unavailable in Arkansas, or where the out-of-state physician physically examines the patient in another jurisdiction.
Hawaii law specifies that out-of-state physicians need no state licensure where he/she is providing a consultation to an in-state licensed physician and 1) the physician operates no office in Hawaii or 2) he or she administers no treatment to any patient except in actual temporary consultation with the in-state licensed physician. Similarly, Idaho law provides that a doctor licensed in another state or jurisdiction is allowed "...to consult if called in consultation by doctor licensed in Idaho or for medical education purposes so long as he (or she) does not open an office or appoint a place to meet patients or receive calls in (Idaho)."
Georgia also modified its definition of the practice of medicine. As a result, out-of-state physicians must now, in most cases, obtain an unrestricted Georgia medical license to provide any patient care service to individuals in Georgia via an electronic medium that transfers patient data. Several exceptions do apply. A physician outside Georgia will not need a full license in the following situations: to provide consultative services either requested by a Georgia licensed physician and provided on a sporadic basis, or rendered in emergency, or given without expectation of compensation, or provided to a medical school approved by the board of medicine.
Kansas was one of the first states to take action aimed specifically at telemedicine. The Kansas State Board of Healing Arts, at the behest of the Kansas Medical Society, issued a regulation in 1994 requiring a physician who treats, prescribes, practices, or diagnoses a condition, illness, ailment, etc. of an individual who is located in Kansas to obtain a Kansas medical license. Although the regulation does not explicitly mention "telemedicine," it is widely referred to as the "telemedicine regulation" in Kansas, in part because it effectively prevents a physician legally practicing medicine in a state other than Kansas from using telemedicine to treat or diagnose patients located in Kansas if the physician is not licensed in Kansas. Thus, any physician who establishes a regular telemedicine link with that state must obtain a Kansas license.
Mississippi chose to modify its state definition of the practice of medicine. Now a physician who renders a medical opinion or treats a patient in Mississippi, as a result of transmission of patient data by electronic or other means, must obtain a state license or risk disciplinary action. A license is not necessary where the patient evaluation is requested by a physician licensed in Mississippi who has already established a doctor-patient relationship with the individual to be treated by the physician outside of the state. Montana prohibits the practice of telemedicine without a telemedicine certificate issued by the State Board of Medical Examiners. New Hampshire requires state (NH) licensure of physicians who provide contractual regular or frequent teleradiology services in the state.
North Dakota similarly amended its Medical Practice Act to define telemedicine and stipulate that such activities will be regarded as the practice of medicine. Telemedicine does not include a consultation provided by telephone or facsimile. The bill also adds the practice of telemedicine without a North Dakota license to the list of grounds for disciplinary actions. A license is not required where the out-of-state physician is in consultation with a licensed physician physically located in North Dakota and who is primarily responsible for the care of the patient.
Likewise, Oregon requires physicians providing telemedicine services across state lines to obtain an Oregon medical license for the practice of medicine across state lines. The license issued is not considered a limited license, but still does not permit the out-of-state physician to practice in the state, except when engaging in practice across state lines. The licensure requirement does not apply to out-of-state physicians who render care across state lines in an emergency or who consult on informal basis without compensation or the exception of compensation and who do not undertake responsibility for diagnosing or rendering treatment to a patient.
Tennessee has amended its medical and osteopathic medical practice acts to include the transfer of patient medical information via electronic means to a person in another state who is not licensed to practice in Tennessee as grounds for license denial, suspension or revocation, except in the following enumerated instances: second opinions requested by a Tennessee licensed physician provided no charges are assessed for the opinion or when such information is used to treat a person seeking treatment outside of Tennessee, to determine insurance coverage, to provide an occasional academic consultation, or to execute a risk evaluation or utilization review program by an insurer.
Texas established that a person who is physically located in another jurisdiction but who, through the use of any medium…performs an act that is part of patient care initiated in Texas, including the taking of an x-ray…that would affect the diagnosis or treatment of the patient, is engaged in the practice of medicine in the state of Texas…and is subject to the state medical practice law and appropriate regulation by the board. The law exempts the following: a medical specialist who provides only episodic consultation on request to a person in Texas who practices the same medical specialty; a medical physician who is providing consultation services to a medical school; or institutions.
West Virginia requires state licensure for the practice of telemedicine. A physician is not subject to the licensure requirements in the following consultative situations: a physician located at a tertiary care or university hospital outside the state and engaged in the practice of telemedicine, who acts in a consulting capacity at the request of a treating physician engaged in the practice of medicine and surgery within the borders of the state or a physician located outside the state who treats a patient when the patient is physically located at an out-of-state location, and when then through the practice of telemedicine consults with a physician located within the state for the purpose of follow-up or consultation related to a treatment plan developed at the out-of-state local. Any other physician located outside the state and engaged in the practice of telemedicine who consults, or who renders a second opinion, concerning diagnosis or treatment of a patient within the state, who consults or renders the opinion (I) in an emergency or without compensation or expectation of compensation; or (II) on an irregular or infrequent basis which occurs less than once a month or less than twelve times in a calendar year, is except from licensure.
Alternatives to State Licensure
The Telemedicine Report to Congress, prepared by a federal Interagency Joint Working Group on Telemedicine, recently identified in its report the following alternatives to state licensure:
Consulting--With a consulting exception, a physician who is unlicensed in a particular state can practice medicine in that state at the behest and in consultation with a referring physician. The scope of these exceptions varies from state to state. Most consultation exceptions prohibit the out-of-state physician from opening an office or receiving calls in the state. Consultation exceptions to the licensure laws were enacted in most states before the advent of telemedicine. Although they may be well-suited to some telemedicine situations, it is unlikely these exceptions were intended to apply to regular, ongoing telemedicine links.
Endorsement--State boards can grant licenses to health professionals licensed in other states that have equivalent standards. For example, health professionals must apply for a license by endorsement from each state in which they seek to practice. States may require additional qualifications or documentation before endorsing a license issued by another state. Endorsement allows states to retain their traditional power to set and enforce standards that best meet the needs of the local population.
Mutual--Mutual recognition is a system in which the licensing authorities voluntarily enter into an agreement to legally accept the policies and processes (licensure) of a licensee’s home state. This approach has been adopted by the European Community and Australia to enable the cross-border practice of medicine. It also been successfully utilized by the Veterans Administration, U.S. Military Branches, Indian Health Service and Public Health Service. Licensure based on mutual recognition is comprised of three components: a home state, a host state, and a harmonization of standards for licensure and professional conduct deemed essential to the health care system. The health professional secures a license in his/her home state and is not required to obtain additional licenses to practice in other states.
Reciprocity--Reciprocity denotes the relationship between two states when each state gives the subjects of the other, certain privileges, on the condition that its own subjects shall enjoy similar privileges at the hands of the latter state. A licensure system based on reciprocity would require the authorities of each state to negotiate and enter agreements to recognize licenses issued by the other state without a further review of individual credentials. These negotiations could be conducted on a bilateral or multilateral basis. A license valid in one state would give privileges to practice in other states with which the home state has agreements.
Registration--Under a registration system, a health professional licensed in one state would inform the authorities of other states that he/she wished to practice part-time therein. By so registering, the clinician would submit to the legal authority and jurisdiction requirements imposed upon those licensed in the host state, but they would be held accountable for breaches of professional conduct in any state in which they are registered. California has passed legislation that would authorize registration but has not yet implemented it.
Limited Licensure--A limited licensure system would be a modification of the current system. Health professionals would be required to obtain a license from each state in which they practiced. However, the physician would have the option of obtaining a limited license that allows the delivery of a specific scope of health services under particular circumstances. This system would limit the scope of practice rather than the time period for practice as is currently the case. The health professional would be required to maintain a full and unrestricted license in at least one state.
National Licensure--A national licensure system could be implemented at the state or national level. A license would be issued based on a standardized set of criteria for the practice of healthcare throughout the U.S. Administration at the national level could be left to a national professional organization.
A national licensure system implemented at the state level would require states to voluntarily incorporate the national standards into their laws. In such a system, the states would be unable to impose significant additional standards. Health professionals would still be required to obtain a license from every jurisdiction in which they practiced, but a common set of criteria would greatly facilitate the administrative process. States could, however, possibly retain some flexibility in the administrative process.
AMA Policy and Positions of Other Medical Societies
American Medical Association
AMA policy firmly supports state-based licensure for physicians (see appendix). The AMA also opposes national licensure approaches for telemedicine. In 1995, Representative Ron Wyden (OR) introduced an amendment to the then-pending Communications Act of 1995 (HR 1555) that would have prohibited restrictions in interstate commerce using advanced telecommunications services. AMA comments raised a number of concerns with this particular legislative approach, which could open the door to a national licensure policy for physicians administered by the federal government. The Wyden amendment was ultimately withdrawn.
Other National Medical Specialty Societies
1994, the American College of Radiology recommended that physicians who interpret teleradiology images maintain a license "appropriate to delivery of radiologic service at both the transmitting and receiving sites." On the other hand, the College of American Pathologists has taken the stance that a physician be licensed in the state where the patient is located.
The American College of Cardiology has recognized the complexities of licensure and the burden telemedicine providers face in complying with multi-state requirements. However, it has not yet decided whether it should develop recommendations for licensure requirements, or support one type of licensure over another. The College, however, does educate its members about telemedicine and the accompanying problems associated with licensure on its website.
The American Psychiatric Association has adopted a position, "Telepsychiatry via Videoconferencing." The Association favors establishment of clinical guidelines to assist physicians in using the technology and to safeguard quality of care, confidentiality, ethical practices and risk management. but acknowledges that because communications technology is changing rapidly and data from ongoing demonstration projects are incomplete, it is too early to establish clear standards. It urges physicians who provide consultation to another physician, supervise a health care professional or provide direct patient care across state lines, to establish with the state medical board in that patient’s state to determine whether a medical license from that state is required to provide telepsychiatric services.
Federation of State Medical Boards
In 1996, the Federation of State Medical Boards (FSMB) developed a Model Act (see attached) to regulate the practice of medicine across state lines. This Act calls for an abbreviated but effective licensure process for physicians who will not be practicing physically within a state’s jurisdiction but wish to provide services to patients within that jurisdiction. The legislation allows a state to provide regulatory control over physicians who provide services in their state.
This Act would require physicians practicing medicine across state lines, by electronic or other means, to obtain a "special" license issued by a state medical board. This "special" license would be limited to practicing across state lines in another state and would not allow physicians to physically practice medicine in the other state unless a full and unrestricted license were obtained. This special purpose license would only be required if a physician "regularly or frequently" engages in telemedicine. Each state medical board would define what "regular or frequent" means. A license would not be required if a physician practices across state lines less than once a month, or the practice is less than 1% of the physician’s diagnostic or therapeutic practice or less than ten patients annually. The Act would exempt physicians who engage in practicing across state lines in an emergency.
The AMA has expressed its appreciation for the FSMB’s efforts to address the difficult issue of licensure for physicians who practice medicine across state lines. The Association has iterated its concern that the model act could intrude into traditional physician-to-physician consultations, especially with its broad application beyond telemedicine. State medical boards’ reactions to the FSMB’s Model Act to Regulate the Practice of Medicine Across State Laws has been mixed, and many boards have opted to require full and unrestricted licensure.
The FSMB also recognizes that administrative inconsistency and the general lack of medical board autonomy in key operational areas pose grave threats to the future of state-based regulation, and thus has crafted recommendations to improve consistency and promote uniform standards for the effective regulation of the medical profession. In 1998 the FSMB adopted a report of its Special Committee on Uniform Standards and Procedures. The FSMB strongly believes that a state-based system retains a flexibility and sensitivity to local concerns that would inevitably be lost in a national system, and allows for the evolution and testing of a range of new approaches to improve the regulation of the medical profession in a number of jurisdictions at once.
Center for Telemedicine Law
The Center for Telemedicine Law (CTL) is a non-profit entity founded by organizations committed to providing high quality patient services through the use of telemedicine systems throughout the United States and the world. CTL founders include Texas Children’s Hospital, Mayo Foundation, the Midwest Rural Telemedicine Consortium and the Cleveland Clinic Foundation. The Center recommends a uniform interstate licensure system. It advocates that such a system establish consistent licensure requirements and allow physicians to qualify for practice in another state without significant delays. It also supports definition of which law governs the professional conduct of a physician practicing across state lines and holding a license in both states. Also, the CTL believes that physicians should not be subject to the demands of separate and inconsistent state laws. Its website is http://www.ctl.org.
Efforts Of Other Health Professions
Nursing--The National Council of State Boards of Nursing(CNCSBN) has proposed a "multistate licensure compact." This allows registered nurses who hold a license in one state to practice in any other state which adopts the compact, provided they follow the laws and regulations of the state in which they are practicing.
In general, under the compact, any state participating in the compact may take action against the multistate licensure of any nurse who practices in that state; however, only the home state may take action against the license itself. The proposed compact calls for development of a Coordinated Licensing Information System (and database) to be operated by a non-profit group. However, the American Nurses Association (ANA) has criticized this model for a number of reasons, including its tying a license to the state of primary residence rather than the state of predominant practice, concerns about the privacy and confidentiality of information in the CLIS, and the possibility of nurses facing adverse actions from more than one state arising from the same adverse incident. For example, if a licensee practicing in a state other than his/her state of residence is involved in an incident that leads to disciplinary action, both the state of residence and the state of practice could bring simultaneous action and share evidence for use against the licensee. The licensee then must obtain legal counsel in both states, defend himself/herself, as well as pay each state’s cost associated with discipline. Other states in the compact where privileges exist but where the licensee does not practice, also could bring action against the same licensee. NCSBN estimates that 12% of nurses hold multiple licensure. ANA believes that the greater the number of nurses holding licenses in several states, the greater the potential revenue loss to state boards of nursing, potentially resulting in reduced nursing board services and/or increased licensure fees. ANA policy instead calls on the Association to develop model guidelines for state nursing associations that wish to pursue legislation that allows agreements with other states to facilitating nursing practice across state borders and assist in the resolution of interstate practice issues in ways other than multi-state licensure agreements such as compacts.
The Association of Women’s Health, Obstetric and Neonatal Nurses similarly is opposed to the interstate compact for mutual recognition of state licensure.
Attorneys--Like a physician, a lawyer may not practice law outside the boundaries of the states in which he or she is licensed. Some courts, however, have recognized a few important exceptions to this rule, giving out-of-state attorneys more leeway concerning transactional work and other advice that does not involve a court appearance. Some courts also recognize an "interstate practice" exception, which applies when a particular matter necessarily involves two or more states.
Social Workers--The American Association of State Social Work Boards has recently developed a Model Social Work Practice Act for upgrading and standardizing social work license laws. The group plans to address the issues of telepractice and interstate practice and develop a new section to be added to the model law.
Conclusion
The changing environment of health care delivery has led to the development of several issues that threaten the current state-based system of medical licensure and discipline. Managed care, with its needs for flexibility and demands for cost-effectiveness, licensure portability in an increasingly mobile society, and telemedicine, underscores the need for change.
Various AMA Councils and units are monitoring interstate licensing, and various issues related to telemedicine: licensure, practice standards or guidelines, medical liability and confidentiality of patient information. The AMA-YPS Governing Council similarly plans to keep a close eye on such trends, and welcomes debate from young physicians through its AMA-YPS Assembly
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