Telemedicine and State Licensure

State licensure of health care has become an important national concern. The National Broadband Plan, released by the Federal Communications Commission in March 2010 states: “State-by-state licensing requirements limit practitioners’ ability to treat patients across state lines. This hinders access to care, especially for residents of states that do not have needed expertise in-state.”

Fundamental to the controversies swirling around the state-based licensure of physicians are three issues:

1. Assurance of quality of care.
2. Protection of state’s rights
3. Protection of trade from outside competition

The discussion has entirely focused on assuring quality of care. However, the other two issues have been motivating factors in many, if not most, cases and are the primary reasons why national licensure approaches will probably not be adopted anytime soon.

Let’s look at the issues one at a time.

Assurance of quality

The doomsday scenario is that a physician from out of state that is not adequately trained or is not in good standing would provide inadequate care for a patient. Of course, inherent in this is the assumption that some states are lax in their policing of physicians or that becoming a doctor in some states is easier than in others.

In order to practice clinical medicine in an unsupervised setting (i.e. outside postgraduate training programs), all physicians (international graduates and domestic graduates in USA) must be licensed by the medical licensing board of the state where they plan to practice. All 50 states require passing all four tests of the United States Medical Licensing Exam® (USMLE) sequence for any physician to obtain a license to practice medicine (or for osteopaths, the Comprehensive Osteopathic Medical Licensing Examination (COMLEX)). The test is the same in every state. The differences in requirements for a medical license between the states are fewer and fewer each year. The only substantive differences are in the number of years required for postgraduate training (1 or 2 years and generally 3 years for graduates of non-U.S. medical schools) and the number of attempts and time limit for completing the examination.

Checking on whether a physician is licensed in any one state is relatively easy. For example, the Federation of State Medical Boards maintains a data base of licensed physicians throughout the United States. Similarly, each state medical board maintains a list of physicians licensed in their state and as well as any legal notice or order in the state regarding that physician.

It is significant to note that this is similar to national and state databases maintained for individual driver’s licenses. Each database is accessible by law enforcement from any state through reciprocity arrangements.

The issue of assuring quality is important in every state. Any state or local licensing authority or any medical center credentialing center can quickly check up on any doctor who is licensed in any other state.

State’s Rights

Getting closer to the heart of the matter is the reluctance of any state to cede its power to license and collect licensing fees. This makes it extremely difficult to move to any federal preemption of state law.

Money is a part of the state’s rights debate. Initial licensing fees range from $200 to $1,000 per state. With almost a million doctors licensed to practice medicine in the United States the amount of state revenues raised through licensing fees is substantial.

Trade Protection

This is the often unspoken heart of the issue in medical licensure. Physicians and specialty groups have supported strong licensure laws in an effort to block out of state physicians from providing services in their own state in competition for patients and health services. Trade protectionism - the imposition of duties or quotas on imports in order to protect domestic industry against foreign competition – is the result.

Over the years, a number of proposals have been made to negate state-based licensing of physicians and adopt a national licensure policy. In 1995, ATA worked in partnership with then Representative (now Senator) Ron Wyden (D-OR) to craft a proposed amendment to the Communications Act of 1995 that would have prohibited state licensure restrictions of interstate commerce. The American Medical Association feared that it would open the door to a national licensure policy. Under strong lobbying pressure, the Wyden amendment was ultimately withdrawn.

Academically, there have been several calls to end state licensing. A 1983 study of state-based and physician-dominated medical licensing bodies in the United States found that “Excessive restriction on entry into the profession has occurred; difficulty in developing innovations in the distribution of medical care have resulted; and severe limitations on the activities of nonmedical health practitioners who pose a competitive threat to the physician have taken place” (Medical Licensure, Social Costs and Social Benefits, Elton Rayack, Law and Human Behavior, Vol, No 213, 1983). Economist Milton Friedman goes so far as to state “It is clear that licensure is the key to the medical profession's ability to restrict the number of physicians who practice medicine. It is also the key to its ability to restrict technological and organizational changes in the way medicine is conducted.” (Medical licensure, Milton Friedman January 1994, Friedman, M., Capitalism and freedom. Chicago: University of Chicago Press, 1962).

Current ATA Policy

While there is a public interest in maintaining physician licensure as part of assuring quality of care, there is currently little political will to completely overturn state authority to license all physicians. However, the increasing demands for healthcare in America and the potential of telemedicine to provide safe, cost-effective access to healthcare calls for a plan of action. There are two approaches that ATA suggests.

Federal Programs - ATA supports the current federal policy of national preemption of state licensing laws for physicians providing federally funded health services. There are several groups of federally funded physicians who are already exempt from obtaining a license in every state in which they see patients. Military, veteran and Indian health doctors, while required to have a license from at least one state, are exempt from needing additional licenses for providing care for a patient located in another state, whether the physician travels to that state in-person or via telemedicine.

There has been talk by some parties that the same policy should be extended to physicians providing services to Medicare patients. Such a policy was suggested on page 206 of the National Broadband Plan where it states: “If states fail to develop reasonable e-care licensing policies over the next 18 months, Congress should consider intervening to ensure that Medicare and Medicaid beneficiaries are not denied the benefits of e-care.”

Intestate Collaboration - ATA also supports policy at the federal, state, and local levels creating collaborative agreements between the states allowing medical licensure portability. Specifically, ATA supports an interstate licensure process, involving reciprocal recognition, which provides adequate state supervision and licensure of physicians and other health professionals but does not continue an undue restriction on the ability of every consumer to access qualified health professionals regardless of their location.

Such a licensure arrangement is loosely based on similar arrangements that were made years ago for drivers’ licenses, recognizing the derived benefits of interstate commerce as well as the existence of national, interconnected networks of roads and highways. Reciprocal agreements for licensure also support the national priority of developing interconnected broadband telecommunications networks and using the resulting infrastructure to improve the lives of all citizens.

ATA suggests that such a process should have the following characteristics:

• Establishes a national multi-state clearinghouse where out-of-state physicians can register with other states and where the national clearinghouse provides assurances of the physicians training and competence as determined by the physician’s home state and provides the single conduit for physicians to pay applicable state licensing fees;
• Does not interfere with an institution’s credentialing and privileging process;
• Clarifies that certain health care services that do not qualify as medical practice, such as clinician-to-clinician discussions and providing health information, are not affected by state licensure laws;
• Avoids counterproductive and anti-consumer restraints on interstate commerce;
• Ensures that all patients have access to health care expertise necessary to protect and promote their health regardless of the location of the patient or provider;
• Does not restrict the use of telemedicine as a valuable service delivery strategy that can play a critical role in overcoming time and distance barriers that often limit access to quality health care;
• Does not restrict virtual travel by patients to seek medical advice outside a state, similar to situations in which patients physically travels to see a practitioner in-person in another state;
• Enables a duly licensed physician and health professional in one state to seek medical consulting medical expertise (collaborative diagnosis or second opinion) from a physician and health professional licensed in another state;
• Allows in-person encounters and virtual (telemedicine) encounters between physician and health professionals and patients who are both located within state borders to remain the purview of the state; and
• Maintains the responsibility of medical care for the patient remains with the requesting physician and health professional (i.e., care never transfers to the out-of-state physician and health professional in the telemedicine model) and that the requesting physician and health professional is the attending physician and health professional.