State Licensure Issues Hamper Telemedicine

By Ronald L. Scott

Telemedicine can link rural communities with medical specialists in urban areas throughout the country. However, when physicians licensed in one state provide services in another state through telemedicine, they must contend with a confusing array of licensing statutes. According to the Health Policy Tracking Service, twenty-two states have enacted legislation addressing telemedicine licensing in the last four years. Legislative activity continues in 1998, with 15 states introducing bills regarding telemedicine licensing.

States have generally regulated telemedicine licensure in three ways. Some states issue special limited purpose licenses. For example, Texas law provides that a person shall be considered to be "practicing medicine" if the person is physically located in another jurisdiction and through any medium performs an act that is part of patient care service initiated in Texas that would "affect the diagnosis or treatment of a patient." The law provides for a "special purpose license" for a physician who is actively licensed in another state and certified in a medical specialty. The law also requires that an applicant for a special purpose license pass the Texas Medical Jurisprudence examination, and practice is limited to the medical specialty upon which the license is granted. A special purpose license is not required for a limited number of "episodic consultations" to a Texas physician who practices in the same medical specialty, consultation services provided to a Texas medical school, or for medical assistance if no charge is made.

A second approach is to require state licensure to practice telemedicine, but to exclude certain defined activities from the licensure requirement. For example, Illinois law provides that persons outside Illinois who practice telemedicine involving Illinois patients must be licensed under Illinois law. However, the definition of telemedicine does not include periodic consults between a person licensed under Illinois law and a person outside Illinois, second opinions provided to Illinois-licensed physicians, or continuing care provided to persons in Illinois by physicians not licensed in Illinois, if the physician previously provided care or treatment to that person when that person was located in the physicianís state.

Finally, some states still require full licensure for the practice of telemedicine. Responding to an inquiry by the State Board of Medical Licensure, the Mississippi Attorney General opined in December 1995 that an out-of-state physician who provides consultations via telecommunications technology and who is not physically practicing medicine in Mississippi is not "practicing medicine" as that term is defined under Mississippi law. The Attorney Generalís opinion suggested that the state legislature would be the appropriate governmental body to deal with the Boardís licensing concerns. The legislature responded in 1997 by including under the definition of telemedicine any medical treatment or medical opinion that concerns a patient in Mississippi by a physician located outside the state as the result of transmission of individual patient data by electronic or other means from within Mississippi to the physician. The law further prohibits any person from engaging in telemedicine without first obtaining a full license.

A number of proposals have been considered to address conflicting state licensure of telemedicine, including consulting exceptions, endorsement, mutual recognition, reciprocity, registration, limited licensure and national licensure. Consulting exceptions allow out-of-state consulting without obtaining a license. States adopting the endorsement model issue licenses to physicians licensed in another state that have equivalent licensing standards. Some states agree to mutually recognize the licensure policies of participating states, a model used in the European community. Reciprocity is similar, providing licensed physicians equal treatment and privileges in a visiting state without requiring licensure in the visiting state. Registration allows practice on a part-time basis in a visiting state but requires physicians to advise licensing authorities of such practice. The Federation of State Medical Boards has proposed model "special limited license" legislation similar to the Texas statute. Perhaps the best approach would be to implement national telemedicine licensing, allowing any physician with a full license in one state to practice telemedicine in any other state, thereby eliminating the possible requirement of licensure in every state, together with the uncertainties generated by current conflicting state laws. National licensure for telemedicine would require the most extensive revision of current physician licensing, pre-empting state licensing statutes. National licensing could incorporate provisions from some of the other models, e.g., requiring some form of registration with state medical boards, limiting the number of telemedicine contacts allowed without full state licensure, etc. The present system simply presents untenable barriers to the practice of telemedicine. For example, it would seem unreasonable to force a specialist located in New York to check out-of-state licensing laws before responding to an out-of-state request for a telemedicine consultation.