March 12, 2012

Moving Care Across State Lines
By Julie Knudson
For The Record
Vol. 24 No. 5 P. 14

Physician licensing issues are putting a crimp on telemedicine’s plans to serve geographically challenged patients.

You video chat with your sister in Idaho while you sit comfortably in your living room in Florida. Why can’t you do the same with your doctor?

In a nutshell, that’s the premise behind telehealth. It’s broadly defined as using technology (eg, video conferencing, sending or viewing images via the Internet, getting advice by phone, remotely monitoring vital signs) to deliver healthcare services. And while much of the technology is in place to provide a fertile ground for growing telemedicine, the framework of medical licensure and other regulations are keeping a lid on its proliferation.

First, let’s examine the roots of the current licensure landscape, which extend back to the country’s founding. In the beginning, there was a “deep suspicion of a strong central power,” says Mark A. Cwiek, JD, MHA, FACHE, a professor at Central Michigan University. That suspicion led to the country’s structure of laws that put any powers not specifically enumerated in the Constitution into the hands of the state governments.

“Included in that is the responsibility and the right to license individuals who will be practicing in the respective states,” Cwiek says. That licensure power extends to professionals such as attorneys, real estate agents, and healthcare providers.

Patient safety is at the heart of many state regulations. “They have to have these type of rules in place because if a provider is practicing telemedicine and seeing a patient in Texas, and [the provider] lives in Alaska, if there’s some negligence involved, how can Texas go after that particular provider?” says Alexander H. Vo, PhD, executive director of the Center for Telehealth Research and Policy at the University of Texas Medical Branch in Galveston. “The practice of healthcare is predicated on the patient’s location, not the provider’s, so ensuring each state is able to regulate and, if necessary, discipline the providers practicing in their jurisdiction is an important part of the states’ powers.”

Because each state licenses physicians to practice within its borders, there are essentially 50 different regulatory bodies controlling the use of and access to telehealth services.

Despite the differences that exist from state to state, there are numerous similarities among some of the regulations. For example, much of the testing to pass each state’s medical board is largely standardized across the country and “not all states require you to attend a fully accredited medical school, but for the most part, that’s a requirement as well,” says Jonathan D. Linkous, CEO of the American Telemedicine Association. “Once you become a medical doctor, then you come under the state’s medical board.”

State boards manage licensure, fees, and reaccreditation for the physicians under their jurisdiction. Each state also maintains its own rules on the continuing education requirements for relicensing. Even the structure of the regulatory body varies. “Some medical boards are appointed by the governor, some are part of the legislature, some are a state agency, and some are a semiautonomous group with some variations,” Linkous says.

In addition, each state holds the power to endorse providers coming in from other states. “Endorsement is a process in which each state issues an unrestricted license to practice medicine to an individual who holds a valid and unrestricted license in another jurisdiction,” says Jason Goldwater, MA, MPA, vice president of programs and research at the e-Health Initiative, adding that gaining endorsement in a new state isn’t an inconsequential feat. “The endorsement process requires a full review and analysis of the applicant’s qualifications and can be a lengthy, complicated, and expensive process.”

When discussing telemedicine and the current lay of the land, much of the attention rests on problems associated with crossing state lines. But not all regulations are aimed at interstate telehealth. Practicing telemedicine within the boundaries of a single state can sometimes present difficulties, too. For example, Vo says a rule was proposed in Texas that would have limited telehealth practices to only those locales within the state that were federally designated as medically underserved areas (MUAs). That restriction would “make it very hard for us to proliferate the use of medicine,” he says.

Instead, the Texas State Medical Board adopted what Vo calls “a more flexible and encompassing rule” that essentially allows licensed providers to practice telemedicine anywhere within the state. It also includes a provision that allows midlevel providers such as physician assistants and practice nurses to see patients via telemedicine under a physician’s supervision.

Exceptions to the Rules
Though individual states maintain their own regulations, exceptions exist that allow physicians to practice outside the borders of the state in which they physically practice medicine. Some have even adopted legislation specifically for telehealth practitioners.

“There are nine states that either have a telemedicine or a special licensure process into which a telemedicine consultant or a telemedicine doctor might participate,” says Greg Billings, executive director of the Center for Telehealth and e-Health Law. “Many of the states also have an exception clause that allows an out-of-state physician to consult on an infrequent or occasional basis.”

While Billings cites 28 states with language in their regulations that allow for either infrequent or occasional consultations, “Unfortunately, only five of those define what is an infrequent or an occasional consultation.”

He also notes that once providers are authorized in the military or VA systems, they can provide care at any military or VA facility in the United States without being licensed in additional states. States may also choose to allow outside providers to practice medicine when disasters strike their residents.

Cwiek indicates that many smaller hospitals utilize “first impression” medical services through telemedicine in a manner that does not violate state medical licensure laws. For example, an emergency department doctor in a small community hospital may not have a radiologist in the building at three in the morning to help with a severe trauma patient. However, the on-site radiologic technician can send the patient’s digital images to a radiologist who may not be in the same state or even in the same country. When the staff radiologist arrives later the same day, the initial reading by the off-site radiologist is reviewed and an official reading is rendered.

Although teleradiology services in this instance were used only for initial readings, it still provided tremendous help to both physician and patient. “The immediate needs of the emergency room doctor and the patient were taken care of and then it’s validated after the fact,” Cwiek says.

What about providers who regularly use telemedicine to care for patients? Linkous says regular practitioners sometimes address the issue by getting licensed in each state they practice in. “There are doctors in some practices, like in radiology, who will see a lot of images from a lot of different states,” he says. “They may be licensed in 20 states.”

Doctors practicing near state borders—such as those in the Washington, DC, area, who could easily see patients in Maryland and Virginia—are also among those who often choose to get multiple licenses. However, that means “going through three different scenarios, paying fees three different times, and answering to the responsibilities and requirements of three different boards of medicine,” Linkous says.

When Regulations Affect Care
Two of telemedicine’s biggest assets are its ability to help patients in rural areas who have limited access to providers and to provide options to those in areas lacking specialists. However, restrictions on how care can be provided limits when telemedicine can be used in these situations.

“The reason state licensing requirements are challenging for telehealth is because they do not specifically address telehealth,” says Goldwater, citing providers who haven’t been endorsed by the state where telehealth is used, thus restricting the practice. “Unless a state has already endorsed a clinician, they can’t help patients through telehealth.”

The growing number of people who need care while away from home means that telemedicine makes more sense every day, but regulations aren’t necessarily keeping pace with the need. “You have a snowbird in Arizona for five months who wants to continue to somehow see their doctor,” Billings says. Prescription refills are easy, but if the patient develops a new concern “it would be much harder for that physician back home to see them.” Under current regulations, the physician needs to decide if it’s worth it to obtain an Arizona license. If not, the patient will need to find a local doctor.

What the Future Might Hold
The best way to move forward is still up for debate, but many experts agree on one thing: A licensure model managed at the federal level is probably not in the cards, at least not in the near term. “A national licensure model may be difficult given the politics involved and the significant role the federal government would play,” Goldwater says. “However, a standard mutual recognition system in which states adopt comparable legislation authorizing licensing agencies to enter into agreement with other states to allow medical providers and nurses to practice in any states that have adopted the legislation is possible.”

This kind of reciprocity would remove some of the interstate barriers that now exist, he adds.

Other organizations, such as the Federation of State Medical Boards and the various regional governors associations, may be in a position to recommend or even implement workable solutions. “I like very much the voluntary approach, region by region, in the states,” Cwiek says. “To me, the governors associations are the perfect platform for this. I really think that could be the fastest way.”

Cwiek believes that if one of the groups “picked it up and made it a cause,” a solution could be presented that would resolve many of the states’ concerns. However, he isn’t optimistic. “People have talked about how things have to change for some time now, but I don’t see anything on the horizon,” he notes.

Billings is aware of draft legislation—expected to be introduced this spring by Sen Tom Udall of New Mexico—that would establish some kind of streamlined licensure procedure. “But the states guard this responsibility very religiously, and it’s going to be very difficult to have them give it up for some kind of a national process,” he says, adding that the state level nevertheless holds the most hope for addressing the issue.

Cwiek agrees with Billings’ assessment of the states’ desires, noting that Udall’s bill “would probably follow the long, tortuous road of litigation to, ultimately, the US Supreme Court. Perhaps a regional approach, one that includes some type of federally supported incentives for collaboration and licensure reciprocity between the states, would be a useful experiment.”

Balancing safety and access will continue to be a primary focus, no matter where pressure comes from. “I think the state rules are in place for a reason and a lot of it is good,” Vo says. “I’m willing to protect the public interest and safety, but at the same time, there has to be some kind of movement toward developing cross-state licensure programs that allow for access to specialists.”

He believes today’s landscape, with state regulations ranging from conservative to nearly nonexistent, is only temporary. “I think it’s just a matter of time before everybody else that does not have telemedicine rules starts to adopt them as the use of telemedicine becomes more mainstream,” he says.

Goldwater says he’s aware of several groups examining the issue, adding that potential solutions include an abbreviated licensure process for physicians who provide services within a state without physically being in that state, a “mutual recognition” model in which providers hold licenses in their state of residency but “can practice in other states as long as they understand they are subject to that state’s practice laws and discipline,” and a national licensure “in which standards would be set by the federal government and would be uniform across the United States.”

No matter how any proposal is structured, Goldwater says it must address three primary issues: “Every medical provider and nurse must comply with all laws within each state they are practicing in, whether electronically or physically; there must be a system to provide effective monitoring of any telehealth practice across state lines; and there must be the establishment of clear standards for telemedicine practice and discipline.”

Linkous believes there’s been a more concentrated effort to get something accomplished. “I think there’s a rumbling we haven’t seen before,” he says. “We have a number of people in each of the state medical boards that are raising this themselves, saying, ‘This is a problem that we’ve got to fix.’ … It’s a real issue and we need to solve it.”

— Julie Knudson is a freelance business writer based in Seattle.