Licensure Barriers to the Interstate Use of Telemedicine

By Howard J. Young & Robert J. Waters

A radiologist in Chicago is asked to interpret an MRI image transmitted from a small, rural Indiana hospital. A dermatologist in New York City who specializes in rare skin conditions is asked to review images of a patient's skin condition from an outpatient clinic in California. A psychiatrist in Atlanta talks by telephone with a patient who recently moved to North Carolina but has not found a therapist with whom she is comfortable. Are these physicians lawfully practicing medicine?

State Licensure Laws

Under their police power, states regulate the practice of medicine through licensure laws.(footnote 1) Physicians are legally required to obtain a license from each state in which they practice. Obtaining a license can be a costly and time-consuming process. Physicians often are required to supply original copies of their high school, college, medical school, and residency transcripts. In some cases personal interviews are required.(footnote 2) States generally accept passing scores on the examination of the National Board of Medical Examiners or the Federation Licensure Exam (FLEX) scores.(footnote 3) However, some, like California, require the applicant to take an oral exam.

Obtaining a state license may take many months and cost in excess of $1,000 per physician, not including any required travel expenses. In determining whether a local license is needed, the provider and his legal counsel should first examine the state's definition of "the practice of medicine." A typical statutory definition is provided by N.C. Gen. Stat. section 90-18 which states that:

[a]ny person shall be regarded as practicing medicine or surgery . . . who shall diagnose or attempt to diagnose, treat or attempt to treat, operate or attempt to operate on, or prescribe for or administer to, or profess to treat any human ailment, physical or mental, or any physical injury to or deformity of another person[.]

This definition is quite broad and could easily encompass the practice of telemedicine. If the contemplated actions in the state constitute the practice of medicine, the state licensure law and its exceptions should be closely reviewed.

Potential Penalties and Sanctions

The potential penalties for practicing without a license may include civil fines and even criminal prosecution. See N.Y. Educ. Law sections 6509-6512; 32 Maine Rev. Stat. section 3270. In some states, any licensed physician who aids or abets a non-licensed physician to practice medicine will also face civil fines and possible suspension or revocation of his or her medical license. The state licensure boards, not the state Attorneys General, would have jurisdiction over the latter violations. See e.g., 32 Maine Rev. Stat. section 3282-A(2)(c) (1994) and N.Y. Educ. Law sections 6509(7) and 6512. If the physicians who are found to have violated the licensing laws participate in Medicare or Medicaid, they may face exclusion from those programs. Section 1128(b)(4) of the Social Security Act, codified at 42 U.S.C. section 1320a-7 (1994).

The New York statute provides a good example of a state licensure provision which could impact the practice of telemedicine. Making the unauthorized practice of medicine a crime, section 6512 of the New York Education Law provides:

  1. Anyone not authorized to practice . . . who practices or offers to practice or holds himself out as being able to practice in any profession in which a license is a prerequisite to the practice of acts, or who practices any profession as an exempt person during the time when his professional license is suspended, revoked or annulled, or who aids or abets an unlicensed person to practice a profession . . . shall be guilty of a class E felony.

Such statutory provisions have been on the books for decades,some even since before the turn of the century. They were originally passed to protect patients by preventing or discouraging "quack" physicians, and those who were not adequately qualified, from practicing medicine. When enacted, the legislators surely did not contemplate the practice of telemedicine by physicians between states, across continents, or even across oceans. Nonetheless, these laws may be construed to prevent out-of-state physicians from practicing via telemedicine without first obtaining a license in that state. Indeed, the American College of Radiologists advises physicians who practice teleradiology to obtain a license from every state in which an image is transmitted or the state where a patient is physically located.(footnote 4)

Out-of-State Consultation Statutes

Although the use of telemedicine may raise the threat of licensure revocation or accusations of the unlicensed practice of medicine, some states have recognized that medical consultation by a physician who is licensed in another state is not only permissible, but in some instances desirable. These states have exemptions to their "unauthorized practice of medicine" laws for out-of-state physicians who act as consultants to in-state practitioners. See Idaho Code section 54-1804(1)(b); Indiana Code Ann. section 25-22.5-1-2(a)(4); New Hampshire Rev. Stat. Ann. section 329:21(II); N.C. Gen. Stat. section 90-18(11); Pennsylvania Stat. section 422.16; Ohio Rev. Code section 4731.01. Pennsylvania and Tennessee, among others, require that the consultation be at the request of the in-state physician. See Tenn. Code Ann. section 63-6-204. Such requirements may place restrictions on the ability of a telemedicine facility to solicit patients in other states. Many of the states with statutory consultation exceptions prohibit the out-of-state physician from opening an office or receiving calls in that state. Idaho Code section 54-1804(1)(b); Maryland Health Occupations Code Ann. section 14-302(4). Regular or frequent consultation may also take the consulting out-of-state physician out of the exemption, requiring him or her to obtain a license. See New Hampshire Rev. Stat. Ann. section 329:21(II); N.C. Gen. Stat. section 90-18(11).

Finally, other states have created exemptions from state licensing requirements for out-of-state physicians who assist in emergencies. See Arizona Rev. Stat. section 32-1421(B); Idaho Code section 54-1804(1)(c); and Utah Code Ann. section 58-12-30(2). The Arizona statute requires, however, that the out-of-state physician is exempt only "if he engages in actual single or infrequent consultation with a doctor of medicine licensed in [Arizona] and if the consultation regards a specific patient or patients." Arizona Rev. Stat. section 32-1421(B).

Telemedical Consultation -- Is It the "Practice of Medicine"?

Whether a physician must obtain a medical license in each state where he or she consults by telemedicine may depend largely on the nature of the services. For example, an argument may be made that an out-of-state radiologist who receives and interprets either a static or dynamic image and who has no direct contact with the patient is not "practicing medicine." However, out-of-state physicians who are in direct communication with patients, thereby creating a patient-physician relationship, will have a difficult time successfully arguing that their telemedicine practice does not constitute the practice of medicine. Certainly if the out-of-state physician is consulting with the patient alone or only with the assistance of paraprofessionals, it is likely that a state board will determine that he or she is practicing medicine in the state where the patient is located. If, however, the patient is attended by a local physician who selects and consults with an out-of-state physician telemedically, it is more likely that the state board will look to the local physician for assuring adequate patient care, thereby obviating the need for the out-of-state physician to obtain a license.

State Regulation of Telemedicine

A growing number of states are beginning to look at whether to require physicians who treat patients by telemedicine to obtain a license in that state. However, only one state, Kansas, has passed a law specifically aimed at telemedicine. The State Board of Healing Arts in Kansas was so concerned about the interstate practice of telemedicine that, at the behest of the Kansas Medical Society, the Board promulgated a regulation (footnote 5) in 1994 requiring any 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.(footnote 6) 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 a patient 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.

In May 1995, a bill was introduced in Maine which would require an out-of-state physician providing medical services to a patient located in Maine to be licensed in Maine. However, the bill provides for an exception for out-of-state "consultations." To constitute a "consultation" under the proposed law, an out-of-state physician may not furnish services which are the "primary provision of care or the primary interpretation of the diagnostic test."(footnote 7)

The Oregon State Senate in February of 1995 approved a bill that would require the state Board of Medical Examiners to adopt rules establishing a registration procedure allowing qualified out-of-state physicians to participate in a telemedicine system. See 1995 Or. Sen. Bill 463. The Colorado legislature has also recently introduced legislation that would regulate the ability of radiologists to practice via telemedicine.

Endnotes

  1. See, e.g., People v. Mulford, 140 App. Div. 716, 125 N.Y.S. 680, affirmed 202 N.Y. 624, 96 N.E. 1125 (1910).
  2. See, e.g., Fla. Stat. section 458.313 - Licensure by Endorsement ($500 fee).
  3. Some states, like Florida, will accept such scores only if the exam was passed within the last ten years.
  4. See ACR Standard for Teleradiology, available from the American College of Radiology located in Reston, Virginia (tel. # 703/648-9000).
  5. The health industry trade press widely but erroneously reported the new Kansas regulation as a statute. While several state Boards of Medical Examiners have examined the licensing issue as it relates to telemedicine, it appears that state legislatures have not yet focused on the issue.
  6. K.A.R. section 100-26-1 (1994).
  7. See 1995 Me. Acts S.P. 534, to amend Sec. 2, 32 MRSA section 2571-A & Sec. 4, 32 MRSA section 3270-E.

Copyright 1995 Arent Fox Kintner Plotkin & Kahn