Telemedicine & Licensure – Will the Law Allow Changes to the Way Medicine is Practiced in the 21st Century?

By Jason E. Lopata, Esq.   There can be no question that the internet has changed the way most of society operates, from our homes and offices, to each and everyone’s smart phone located in their pocket or purse.  Medicine is not immune from the use and development of technologies to bridge the gap in physical distance between two non-electronic parties.  We may have to soon get used to the idea of a physician on one end of teleconferencing or video technology, and a patient on the other end.  Whether that physician is at a video screen at his office desk or holding a hand held device while vacationing in another part of the country, a physician’s office can be boundless in today’s world.

But how does a physician know that he is properly licensed to practice medicine by way of these new technologies?  Does the location of the doctor or the patient (or both) dictate what jurisdiction is relevant to any licensure questions?  While telemedicine has the potential to overcome barriers of distance and improve access to needed health care services, the current state-by-state licensure laws pose an obstacle to achieving this goal.  Requiring licensure in each state where patients may receive care is a disincentive to utilize the new technology and provide specialty care to rural and underserved areas of the country.  As a physician, one must stay informed of your jurisdiction’s regulations, as well as any neighboring states where your patients may be traveling to receive your care and treatment.

With limited exceptions, most states still require full in-state licensure for out-of-state telemedicine providers.  But in New York, like many other jurisdictions that do not specifically address the practice of telemedicine, there are some exceptions that allow out-of-state practice.   These may be applied to telemedicine, such as a physician who is either (1) licensed in a bordering state and who resides near a border of this state, provided such practice is limited in this state to the vicinity of such border and provided such physician does not maintain an office or place to meet patients or receive calls within this state, or (2) Is licensed in another state or country and who is meeting a physician licensed in this state, for purposes of consultation, provided such practice is limited to such consultation.  Most current regulations allow for this doctor to doctor contact, but do not address doctor to patient relationships in the consultation or specialty realm.

On the other hand, states such as Illinois, Mississippi, and Texas all have regulations specifically to deal with the practice of telemedicine, giving specific guidance as to what constitutes telemedicine. An example is Illinois’ definition that  “telemedicine”” means the “rendering written or oral opinions concerning diagnosis or treatment of a patient in Illinois by a person located outside the State of Illinois as a result of transmission of individual patient data by telephonic, electronic, or other means of communication from within this State.”  When regulations exist, specific requirements are spelled out for out-of-state physicians to treat their in-state population.  Physicians who practice telemedicine “without a license” risk criminal and civil penalties, state disciplinary proceedings, and denial of coverage under medical malpractice insurance policies which generally require licensure as a condition of coverage.  This occurs despite the fact that most state licensure procedures have become fairly uniform from jurisdiction to jurisdiction.

The American Bar Association (ABA), in a August 2008 report on telemedicine, believes that the most straightforward method to reduce such barriers to telemedicine is to institute a system of mutual licensure recognition whereby a physician with a current, valid and unencumbered license in any state could file a single application which would permit the physician to practice telemedicine in some or all other states.  The physician would be subject to continuing compliance with those states’ licensure fees, discipline, and other applicable laws and regulations, and adherence to professional standards of medical care.  The ABA further recommends any federal legislation set a uniform definition of “out-of-state telemedicine practice” (e.g., that the physician does not set up an office, appoint a place for meeting patients, or routinely receive calls within the state), the requisite procedures for telemedical licensure, and a requirement that the telemedicine provider must agree to the jurisdiction of the patient’s home state for medical malpractice actions.  But even amidst all the federal legislation affecting the health care industry, uniform telemedicine licensure issues have not yet been proposed.

While a good idea, I don’t yet see a federal standard evolving, as states are going to maintain their regulatory control of the industry.   So as a physician, one must still be prepared for these licensure and liability questions to emerge as you start to adopt technologies that widen the scope and “footprint” of your practice.  Physicians should consult an attorney with any questions whether borders are being “virtually” or literally crossed for purposes of your licensure.