Licensing and E-health
Interstate Practice of Medicine and E-Health
Pacific West Law Group http://www.pacificwestlaw.com/ehealth/ehealthlaw.htm
In the area of e-health, legal concerns have been raised regarding the practice of medicine through electronic transmissions such as the Internet over state lines. Although the conventional wisdom is that physicians may not practice medicine in states where they are not licensed, the law has begun to evolve in the direction of allowing the interstate practice of medicine where the Internet allows the practice to be a clear benefit to the patient in the form of improved health care. For example, the use of electronic imaging to transmit x-rays and other diagnostic scans for examination by radiologists across state lines have been the subject of new legislation to permit this developing form of medical practice.
Other examples include new state legislation to permit nurses employed by health plans to operate 24 hour advice lines across state lines, and new legislation to make it easier to permit pharmacies to operate across state lines over the Internet.
It appears that if the Internet can be used in a rational fashion to benefit patients, interstate licensing concerns have fallen by the wayside as legislatures operate to remove interstate licensing barriers.
2001 Report to Congress on Telemedicine, Office for Advancement of TeleHealth, (Last visited: March 17, 2003)
***Next Steps Overview
Five years ago, interstate licensure issues were thought to be among the most critical barriers to telemedicine. Today, the problem has been compounded by the growth and consumer use of the Internet. The Internet has also raised new legal issues that may grow to overshadow interstate licensure.
Since the Department of Commerce's 1997 Report to Congress on Telemedicine was published, the problem of multiple state licensure requirements for telemedicine providers has not improved and in some ways has worsened. Since then, more states have adopted restrictive laws requiring out-of-state telemedicine practitioners to obtain local state medical licenses.
Historically, states have had the authority to regulate activities affecting the health, safety and welfare of their citizens. Hence, health professionals in the United States are licensed at the state level. States define the process and procedures for granting a health professional license, renewing a license and regulating medical practice within the state. The Federal government does have the authority to establish national regulations such as those under Medicare that set specific eligibility requirements for reimbursement. However, there is a strong legal presumption against federal preemption of state licensure laws. Therefore, unless Congress acts to regulate telemedicine licensure, the states themselves must decide to harmonize their standards and laws. Tables 2 and 3 below illustrate generic and specific licensure models that could be used for multiple state health licenses.
TABLE 2: General Licensure Models Consulting Exceptions With a consulting exception, a physician who is unlicenced in a particular state can practice medicine in that state at the request of 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. In most states, these exceptions were enacted before the advent of telemedicine and were not meant to apply to on-going regular telemedicine links. However, some states permit a specific number of consulting exceptions per year. Hawaii, Colorado and California allow significant consulting exceptions. Endorsement State boards can grant licenses to health professionals in other states with equivalent standards. 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. However, complying with diverse state requirements and standards can be time consuming and expensive for a multi-state practitioner. Reciprocity 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 bilateral or multilateral. A license valid in one state would give privileges to practice in all other states with which the home state has agreements. Mutual Recognition 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. 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. The health professional secures a license in his/her own home state and is not required to obtain additional licenses to practice in other states. The nurse licensure compact is based on this model. Registration Under a registration system, a health professional licensed in one state would inform the authorities of other states that s/he wished to practice part-time there. By registering, the health professional would agree to operate under the legal authority and jurisdiction of the other state. Health professionals would not be required to meet entrance requirements imposed upon those licensed in the host state but they would be held accountable for breaches in professional conduct in any state in which they are registered. California has the authority to draft this type of model. Limited Licensure Under a limited licensure system, a health professional would have to obtain a license from each state in which s/he practiced but would have the option of obtaining a limited license for the delivery of specific health services under particular circumstances. Thus, the system would limit the scope rather than the time period of practice. The health professional would be required to maintain a full and unrestricted license in at least one state. The Federation of State Medical Boards has proposed a variation of this model. National Licensure A national licensure system could be adopted on the state or national level. A license would be issued based on a universal standard for the practice of health care in the US. If administered at the national level, questions might be raised about state revenue loss, the legal authority of states and logistics about how data would be collected and processed. If administered at the state level, these questions might be alleviated. States would have to agree on a common set of standards and criteria ranging from qualifications to discipline. Federal Licensure Under a Federal licensure system health professionals would be issued one license, valid through the US, by the Federal government. Licensure would be based on Federally established standards related to qualifications and discipline and would preempt state licensure laws. Federal agencies would administer the system. However, given the difficulties associated with central administration and enforcement, the states might play a role in implementation.
Source: Department of Commerce, "Report to Congress on Telemedicine," 1997.
TABLE 3: Specific Licensure Models American College of Radiology (ACR) In 1994, the ACR adopted a" Standard for Teleradiology" and developed a Model Act based on this standard that is similar to the general endorsement model described above. American Medical Association (AMA) In 1994, the AMA adopted a policy that "states and their medical boards should require a full and unrestricted license for all physicians practicing telemedicine within a state." California Registration The State of California's law is a specific example of a registration model. In 1997, California passed laws that permits the Board of Medicine to create a registration program for telemedicine providers. College of American Pathologists (CAP) The CAP model is a variation of the endorsement model. This proposal requires physicians to have their licenses endorsed in each state from which they receive patient specimens or information. The CAP suggests that an abbreviated licensure process would be preferable to a license for limited practice. Federation of State Medical Boards(FSMB) The FSMB supports a special licensure for telemedicine, a variation on the general limited licensure model. In 1995, FSMB proposed an "Act to Regulate the Practice of Medicine Across State Lines." Under this Act, a physician would be required to obtain a special license issued by the state medical board. Several states have adopted variations on this model including Alabama, Tennessee and Texas. National Council of State Boards of Nursing (NCSBN) The National Council's model is the most far reaching of any model and is based on the general mutual recognition model. In November 1998, the National Council adopted language for an Interstate Nurse Licensure Compact. This compact creates a unified standard for nurses' licenses. Nurses will be able practice telemedicine in whichever states adopt the compact. Licenses will be fully recognized by the host and home state by mutual recognition. To date, Arkansas, Delaware, Iowa, Maine, Maryland, Miss, Nebraska, NC, SD, Texas, Utah and Wisconsin have passed this compact into law.
Sources: Commerce Department, "Report to Congress on Telemedicine," 1997; Western Governors Association
Under this compact, the head of the nursing licensing board willadminister the Compact for his/her state. Among other things, this compact states that: "license to practice registered nursing issued by a home state to a resident in that state will be recognized by each party state as authorizing a multi-state licensure privilege to practice as a registered nurse in such party state." This compact also applies to a license to practice licensed practical/ vocational nursing.
To coordinate these multi-state licenses, all party states "shall participate in a cooperative effort to create a coordinated data base of all licensed nurses and licensed practical/ vocational nurses." Including information on a nurse's licensure and disciplinary history.
In early 1997 only 11 states had telemedicine licensure laws. Today, about 26 states have introduced licensure laws pertaining specifically to telemedicine that may make it more difficult for physicians to practice telemedicine across state lines. Appendix 2 lists these states. Making it easier for nurses to practice across state lines, the National Council of State Boards of Nursing
(NCSBN) developed a licensure model based on mutual recognition called the Interstate Nurse Licensure Compact. As described in Box 2, NCSBN promotes the introduction of legislation and the adoption of state laws to allow nurses to practice across state borders without being licensed outside their home states.
Arkansas, Delaware, Iowa, Maine, Maryland, Mississippi, Nebraska, North Carolina, South Dakota, Texas, Utah and Wisconsin
Currently, 12 states have adopted the Nurse Licensure Compact as listed in Box 3. Other organizations, such as the National Association of Pediatric Nurse Associates, and Practitioners, and the Association of Women's Health, Obstetric and Neonatal Nurses, believe that alternative models like the national licensure model, as described in Table 2 and in their letter in Appendix 3 may be a better solution.
Consumers with access to the World Wide Web can peruse volumes of health information, join chat groups, purchase pharmaceuticals in privacy and consult a health care practitioner for a fee. But together with these benefits, the Internet has added new twists to old licensure problems and has raised other legal issues. For example, given the nature of the Web, it may be difficult for a consumer or state government to determine whether or not particular Web sites comply with states' laws pertaining to a physician's or other health practitioner's interstate practice. Theoretically, online health practitioners, who do not provide specific medical advice or diagnosis, would probably not be seen as practicing medicine across state lines. Realistically however, these consultations can fall into large gray areas.
Perhaps the larger legal issue for many states may be their ability to enforce their own state health laws. For example, if a consumer, located in state A, sues an on-line practitioner, based in state B, who has jurisdiction in this case? Does the jurisdiction change if the interactive consultation was accomplished via the Web, over the telephone, via email or a two-way teleconferencing unit? What happens if the Web site was created and staffed outside the United States? What recourse would the consumer have if the Web site was immediately taken down but reconfigured under a different address the next day?
These legal questions apply not only to Web based companies but also to companies that provide health care consultations using any type of technology across state boarders. For example, many health insurance companies now give their clients the option to consult with a nurse over the telephone before seeking face-to-face medical consultation. Large health insurance companies with a national base will often subcontract to a company with a central office staffed with nurses, who field incoming nationwide calls. Do these nurses need to be licensed in every state in order to answer these calls?
A recent DHHS report, Wired for Health and Well-Being, (http://www.scipich.org) states that "the extent and nature of liability associated with IHC (Interactive Health Communication) applications are unclear. Providing medical advice through IHC applications, including Web sites, increases potential liability for developers. To what extent the developers, sponsors, content providers, or others involved in the design and implementation of the application will be liable for damages is unknown. In the absence of precedents in this area, future legal action and case law may provide some clarity on these issues." (Wired for Health and Well-Being, DHHS, Office of Public Health and Science, April 1999)
Finally, whether Web developers are state certified or not, the issue of illegal drugs sold over the Internet or legal drugs sold without an initial patient examination by a physician has created a growing safety and legal challenge for both state and federal regulators, as discussed in the next chapter.
Another dilemma that has not been resolved is whether or not health care practitioners providing telehealth services should be certified in this area. Earlier this year, the Joint Working Group on Telemedicine (JWGT) developed a draft discussion paper (See Appendix 4), exploring the advantages and disadvantages of certification. According to the paper, there is confusion about the meaning of the term. Credentialing, certification, privileging and licensing are often used interchangeably to describe the validation of practitioners' competencies in telehealth. National professional and provider organizations and government agencies are increasingly queried about whether there is a need for additional and/or official validation of practitioners' competency to engage in telehealth. And it is unclear whether the questions about validation relate either solely to the equipment used or to the clinical care delivered. Additional complexity surrounds the relationship of the validation of individuals versus organizations.
The JWGT hopes to compile comments about the draft paper from interested parties and provide a summary of its findings.
Although little has been resolved about individual accreditation, there has been change at the institutional level. In the fall of 2000, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), an independent, not-for-profit organization, adopted new credentialing standards for hospitals using telemedicine. The full text of these new standards, which become effective January 1, 2001, can be found at http://www.jcaho.org/standard/medicalstaff_rev.html#Telemedicine. JCAHO evaluates and accredits nearly 20,000 health care organizations and programs in the United States. Its accreditation is recognized nationwide as a symbol of quality that indicates that an organization meets certain performance standards. To earn and maintain accreditation, an organization must undergo an on site survey by a JCAHO survey team at least every three years.4 The new standards amend medical staff standards within the accreditation manual for hospitals. According to the manual:
"If a telemedicine practitioner prescribes or renders a diagnosis, or otherwise provides clinical treatment to a patient, the telemedicine practitioner is credentialed and privileged by the organization receiving the telemedicine service. An organization may use credentialing information from another Joint Commission accredited facility, so long as the decision to delineate privileges is made at the facility that is receiving the telemedicine service."
*** The Joint Working Group on Telemedicine will work with various state governmental and professional groups to assess the feasibility of developing common licensure application forms, similar to the common college application form, accepted at a number of universities. Common applications will reduce time and costs associated with completing numerous different applications that vary in state requirements and paperwork. States, in turn, can more easily develop a comprehensive database on practitioners and track them across state borders. Footnotes
4Information about the Joint Commission was taken from their Web site at http://www.jcaho.org.