| Introduction
As the
U.S. health system evolves to meet the
changing needs of consumers, traditional
methods of health care delivery are being
transformed. No longer are the patient
and the provider always in the same location.
Communication technologies are being used
to address health professional shortages
in rural and frontier areas. Development
of regional and national delivery systems
has opened new avenues for linking the
patient with specialized medical experts.
For these reasons, the number of physicians
and other health providers practicing
across state boundaries has increased
in recent years and is expected to continue
to increase in the foreseeable future.
Yet, for the most part, the traditional
state-based approach to health professional
licensure remains in place.
Both the 1997 and 2001 Telemedicine Reports
to Congress by the Office for the Advancement
of Telehealth identified licensure as
a major barrier to the development of
telemedicine. (See Telemedicine report
to the Congress, GPO No: 0126-E-04 (MF),
Washington, DC. U.S. Department of Health
and Human Services; and 2001 Telemedicine
Report to Congress, GPO No: 619-261/65410,
Washington, DC. U.S. Department of Health
and Human Services). Since publication
of these reports, state regulatory boards
have attempted to address questions of
practice across state lines in a variety
of ways. Although a number of health professions
are studying the issues, at this point,
medicine and nursing have taken the lead
by adopting formal approaches to adapting
state licensure requirements to accommodate
practice across state lines. In 1996,
the Federation of State Medical Boards
(FSMB) adopted A Model Act to Regulate
the Practice of Medicine Across State
Lines, calling on state medical boards
to adopt a "special purpose license"
to authorize limited practice in states
other than the physician's state of practice.
The National Council of State Boards of
Nursing (NCSBN) approved a Nurse Licensure
Compact in 1998, by which states could
agree to recognize a license granted by
another participating state.
These new practice models have presented
challenges to both providers and regulators.
Health care providers are justifiably
concerned about engaging in practice in
states in which they do not hold a license
and thus do not have clear legal authority.
Regulators are uncertain regarding their
ability to control and sanction the quality
of care rendered to in-state residents
by out of state providers.
This report provides a comprehensive listing
of state medical and nursing licensure
laws that affect telehealth services,
accompanied by appropriate charts.
Background
Traditionally, the licensure of health
professionals is a function performed
at the state level. Laws governing individual
health care providers are enacted through
state legislative action, with authority
to implement the practice acts delegated
to the respective state licensing board.
Over the past fifty years, the basic standards
for medical and nursing licensure have
become largely uniform in all states.
Physicians and nurses must graduate from
nationally approved educational programs
and pass a national medical and nursing
licensure examination. Every state must
"endorse" individual candidates
moving from other states. However, there
are significant differences in the administrative
and filing requirements which can pose
a barrier to physicians and other health
providers attempting to establish a multi-state
practice. For physicians these obstacles
can sometimes be overcome through "consultation
exceptions" which allow occasional,
infrequent, or limited practice within
a state. These exceptions take many forms.
In recent years, a number of challenges
have been aimed at the traditional state-based
licensure model. As health care practice
changes, questions are raised about whether
the traditional system is sufficient to
meet the needs of health professionals
in an interconnected electronic environment.
For example, on an electronic encounter
does the patient "visit" the
doctor or vice versa? Licensees with multi-state
practices are frustrated by the bureaucratic
requirements associated with re-validating
their education and licensing experience
repeatedly. Regulatory boards struggle
with ensuring that standards are reasonable
and can be administered fairly and in
a timely manner. Most importantly, boards
are under increasing pressure to protect
patients against inappropriate dispensing
of prescription medications via the Internet.
Providers are often confused by varying
state requirements and question these
requirements as arbitrary and designed
to minimize competition. Indeed, some
critics have gone so far as to challenge
whether the current state licensure structure
is actually created to protect the professions
rather than the patient.
Licensure
Options
Suggestions for reform vary. In considering
any alternate approach to professional
licensure, it is essential to remember
that the ultimate purpose of professional
licensure is to ensure public protection.
Both Telemedicine Reports to Congress
presented a number of potential state
licensure options to address telemedicine
and other practice across state lines.
State boards currently use a system of
endorsement to recognize providers not
initially licensed in their state. Endorsement
is a process whereby each state issues
an unrestricted license to practice a
profession to an individual who holds
a valid and unrestricted license in another
jurisdiction. Endorsement requires a full
review and analysis of the applicant's
qualifications, and can be a lengthy,
complicated and expensive process. While
endorsement is the most common method
used by states to recognize an individual
already licensed by another state, the
practicality and efficiency of this option
are being tested by the multi-state nature
of electronic practice.
While the endorsement model works fairly
well for a practitioner who moves from
one state to another, there are still
significant delays and duplication. These
problems are substantially compounded
for the multi-state telehealth practitioner.
Practitioners must still apply for a license
in each state where practice occurs. Even
where states have substantially equivalent
licensure requirements, each individual
state has the authority to establish additional
standards that are unique to that state,
e.g., continuing education or practice
requirements. In an effort to create a
system that would allow for professional
practice in multiple states, medical and
nursing regulators have approached licensure
revision in different ways.
Medicine
- FSMB Model Act
Most state medical boards have taken
the position that practice of medicine
occurs in the state where the patient
is located. Medical boards take seriously
their mandate for public protection. They
want at least some control over any physician
treating patients in their state, even
if that physician never enters the patient's
state and is already licensed by another
state.
Because
of the increase in the practice of medicine
across state lines by telemedicine and
other means, the Federation of State Medical
Boards established a special committee
to evaluate the issues and make recommendations
to state medical boards regarding potential
regulation. At the time the committee
began its work, physicians practicing
medicine across state lines without physically
being located in the state where the patient
encounter occurred were either required
to have a full and unrestricted license
in that state or were unregulated. In
response to the need to protect the public
without being overly burdensome to the
profession, the FSMB developed a model
legislative act that called for an abbreviated
licensure process for physicians not physically
practicing within a state's jurisdiction,
but providing services to patients within
that jurisdiction. This model was designed
to allow states to appropriately provide
regulatory control over physicians providing
services within their states. So far,
a total of 8 states have adopted plans
similar to the FSMB model.
Nursing
- NCSBN Interstate Compact
In 1994, the National Council of State
Boards of Nursing (the organization comprised
of boards of nursing) created a task force
which conducted extensive analysis of
potential licensure models, ultimately
finding the most appropriate model for
nursing to be the mutual recognition model.
The mutual recognition model of nurse
licensure allows a nurse to have one license
(in the state of residency) and to practice
in other states, as long as that individual
acknowledges that he or she is subject
to each state's practice laws and discipline.
To date, twenty states have adopted the
interstate compact, with other states
considering the model.
Mutual
recognition is a system in which each
state adopts comparable legislation authorizing
licensing agencies to enter into an agreement
with other states to grant licensees the
authority to practice in any state that
has adopted the agreed upon legislation.
The mutual recognition approach to licensure
is typically implemented by adoption of
an interstate compact specifying the details
of the agreement. Mutual recognition necessitates
that states define a common set of requirements
governing the agreement.
Under
mutual recognition implemented by an interstate
compact, practice across state lines is
allowed, whether physical or electronic,
unless the nurse is under discipline or
a monitoring agreement that restricts
practice across state lines. To implement
this nursing licensure model, each state
must adopt the interstate compact. The
advantages of this model are:
- Authority
is granted to practice in any party
state;
- Dual
jurisdiction for discipline is established;
- Uniform
standards are not required;
- It
can be phased in as states adopt the
interstate compact; and
- A
central licensee information system
called NURSYS is a component of the
infrastructure.
- The
interstate compact is an agreement between
two or more states entered into for
the purpose of addressing a problem
that crosses state lines. Modification
of the compact is only possible with
the unanimous consent of all party states.
Once enacted, it takes precedence over
prior statutory provisions. The nursing
licensure compact specifically addresses
four areas:
- Jurisdiction,
- Discipline,
- Information
sharing, and
- Administration
of the compact.
Although
the compact supersedes state provisions
that are in direct conflict, all provisions
that are not addressed by the compact,
or are not in direct conflict, continue
to be in full force and operation. From
the perspective of the licensee, solid
authority for practice is afforded in
each party state. Since the nurse does
not have to get a new license for temporary
practice in a party state, the nurse can
begin practice when needed. Elimination
of the time and expense in gaining multiple
licenses is a frequently cited benefit
for licensees.
Other
Health Professions
Although not yet addressed in state
legislation, other professions are facing
unique professional and regulatory issues
in dealing with telepractice and other
practice across state lines. Professionals
in such fields as mental and behavioral
health; speech-language-hearing; tele-dentistry;
occupational therapy; and dietetics; are
engaged in discussions about whether licensure
changes should be made to accommodate
telepractice.
These
groups have engaged in some isolated efforts,
generally on an individual state basis,
to advocate for telepractice friendly
regulation. However, at this point there
are not any broad trends we can point
to. The groups that have begun to increase
their focus on telepractice issues have
not as yet made significant inroads when
compared to the nurses or even physicians,
however, as more professionals become
involved, these issues will be increasingly
brought before the relevant regulators.
Other
Models
Some in the telehealth community have
suggested that the time has come to consider
federal or national licensure. The federal
government has the authority to play a
more active role in setting national licensure
standards for certain health professionals,
particularly in an area such as telehealth
where interstate commerce is clearly involved.
Congress has previously passed legislation
establishing certain national health and
safety standards. For example, Congress
passed the Mammography Quality Standards
Act (MQSA) of 1992, which allows the FDA
to establish national standards for mammography
facilities and associated staff. There
might be some theoretical logic to adopting
a federal standard for those health professions
where the qualifications to practice have
become uniform in virtually all states
and where interstate practice is becoming
increasingly prevalent.
There
might be some theoretical logic to adopting
a federal standard, however, traditional
notions of federal-state responsibility
and vested political interests are likely
to weigh against any sudden moves in this
direction. Nevertheless, Congress has
called on the Administration to prepare
a number of reports on state licensure
barriers to telehealth. For example, in
2002, when the House Commerce Committee
inserted language in the Safety Net Legislation
that expressed the Congressional interest
in collaboration among regulatory boards
to facilitate elimination of barriers
to telehealth practice. (Health Care Safety
Net Amendments of 2002, Pub. L. No. 107-251,
116 Stat. 1621.). This legislation was
ultimately signed by the President. Similar
language was included in the Senate version
of the prescription drug legislation pending
on Capitol Hill. (See S. 1, 108th Cong.,
1st Sess. § 450H, 2003). These actions
are indicative of Congress becoming increasingly
concerned over the restrictive nature
of certain state licensure requirements
and their negative impact on the delivery
of telehealth services.
The term
"national license" is often
used interchangeably with federal license.
The most direct means to achieve a "national
license" would be for the federal
government to adopt national licensing
legislation or a requirement that licensure
in one state would allow practice in other
state. However, mutual recognition, reciprocity,
the special purpose license, and registration
models could afford a practitioner with
the ability to practice across the country.
A number
of concerns are raised in any discussion
about federal licensure of health professionals.
The primary concern is the strong history
of state regulation of health professionals
and accountability for public protection.
Since monitoring of professional practice
(and discipline when necessary) is a unique
responsibility of regulatory boards, it
is difficult to imagine the administrative
mechanism to ensure that unsafe practitioners
are removed from practice in a timely
manner. Health care providers express
anxiety over the complexity of a federal
agency (bureaucracy) attempting to issue
licenses (and renewals) for several million
health professionals.
Factors
to be Considered in Choosing a Professional
Licensure Model
Selection
of a licensure model requires analysis
of relevant factors at several levels.
Strategic leadership can provide an invaluable
foundation when it facilitates consensus
on the essential regulatory criteria for
public protection related to professional
practice. Any proposed model could then
be evaluated in light of those essential
regulatory elements. Potential criteria
for regulation might include:
- Ensuring
that every licensee complies with all
laws governing practice;
- Identifying
the professional scope of practice and
establishing legal authorization for
that practice;
- Development
of a testing/credentialing mechanisms
to demonstrate that applicants possess
knowledge, skills, and attributes for
safe and effective practice;
- Establishment
of clear standards for education, practice,
and discipline;
- Creation
of an expeditious disciplinary process
while ensuring due process;
- Systems
to provide effective monitoring of practice;
and
- Elimination
of unnecessary barriers to interstate
practice.
Experience
has shown that relevant environmental,
professional and organizational factors
must be identified and analyzed early
in the process -- even before final determination
of a preferred model.
Emerging
Trends
The rapid escalation of Internet websites
offering prescription medications directly
to consumers has resulted in an unprecedented
challenge to medical boards and added
confusion to telemedicine and e-health
licensure discussions. Internet spam consistently
contains direct offers to consumers for
many medications which are only available
with a prescription and have the potential
to cause substantial harm without sufficient
medical oversight. Most often, these Internet
sites offer medications based on a questionnaire,
with or without a physician consultation,
a physical examination, or a legitimate
prescription. Medical boards are faced
with complex challenges in determining
the location of the website, determining
physician involvement, and ascertaining
use by citizens of the state. Responding
to their mandate for public protection
as well as consumer complaints, a number
of medical boards are engaged in investigatory
and criminal actions against these websites.
Adding to this complexity is fact that
medical boards acknowledge that physicians
are beginning to incorporate the Internet
into their existing practices and within
the framework of a "valid" physician-patient
relationship. Thus, regulators must devise
policies which allow incorporation of
new communications into practice, while
ensuring that unscrupulous providers do
not cause harm.
The pharmacy
profession is attempting to find the balance
between using the Internet to augment
legitimate prescription transactions,
while limiting those who sell medications
without a valid prescription. The FDA
is aggressively monitoring Internet pharmacy
transactions and has initiated a number
or actions against illegal and unethical
activities, as have coalitions of state
Attorneys General. Information about these
actions can be found at www.fda.gov.
In 2002,
the FSMB Special Committee on Professional
Conduct & Ethics developed Model Guidelines
for the Appropriate use of the Internet
in Medical Practice which specifies that
"the physician-patient relationship
is fundamental to the provision of acceptable
medical care . . . physicians must recognize
the obligations, responsibilities and
patient rights associated with establishing
and maintaining an appropriate physician-patient
relationship whether or not interpersonal
contact between physician and patient
has occurred." These guidelines further
state that "it is the expectation
of the Board that e-mail and other electronic
communications and interactions between
the physician and patient should supplement
and enhance, but not replace, crucial
interpersonal interactions that create
the very basis of the physician-patient
relationship."
An Internet Clearinghouse has been developed
by FSMB to assist state medical boards
with their online investigations.
Recent
Developments
Since all state medical practice acts
require that any physician practicing
in the state must have a local license,
many states espouse that their existing
laws adequately reflect their position
about licensure for telemedicine. Other
states affirm that a full and unrestricted
license is necessary to practice telemedicine
and have reinforced that stance in law
or policy. The primary option available
to those boards that advocate a more open
approach to practicing medicine across
state lines is adoption of the FSMB models
establishing a special purpose license.
To date,
thirty-three states have specifically
addressed medical practice across state
lines. Twenty-one states require full
licensure for out-of-state physicians
providing services via telemedicine directly
to in-state patients. Many of these states
have significant consultation exceptions
for telemedicine providers, allowing development
of consulting relationships with in-state
providers. Some states also support telemedicine
for use in emergencies or services unavailable
in-state. Eight of the thirty-one states
have adopted variations of the 1997 Federation
of State Medical Board model law that
authorizes a "special purpose"
license for practicing across state lines.
Some states have issued formal or informal
opinions about the practice of telemedicine
or the appropriate standard of care for
electronic based practice. Though not
statutory, these board policy statements
do represent the position of the licensing
board.
Consultation
exception language varies from state to
state, with some provisions broad enough
to cover frequent telemedicine contacts
with physicians in another state, while
others are more restrictive. The most
stringent regulations limit the number
of consultations, while more broad exceptions
allow nearly unfettered access to the
advice of out-of-state physicians. Very
few states have provided for telemedicine
consultations by law. Even within states,
regulatory authorities may take different
approaches. For example, the Oregon legislature
adopted legislation similar to the FSMB
model, only to have the medical board
require that the physician must conduct
an in-person physical examination prior
to engaging in telemedicine.
Many
states that have attempted to incorporate
regulations that support legitimate telemedicine
services within their states and across
state lines have been distracted by issues
emerging from the rapid escalation in
Internet sites offering prescription medication.
This issue is perceived as a more immediate
and widespread threat to public protection.
The complexity of gathering evidence to
take disciplinary action has further exacerbated
state medical board resources devoted
to this problem.
Nursing
regulators are moving forward with an
approach to licensure which is based on
interstate collaboration and recognition
of credentials granted by other states
entering into the agreement. To date,
twenty states have adopted the interstate
compact. Language authorizing the compact
has been introduced in other states, but
has not yet been adopted for various reasons.
Moving
the Process Along
Steady advancements in telecommunications
and telemedicine technologies continue
to afford new and expanded options for
remote health care. Specialty consultation,
telerehabilitation, telehomecare, and
telemental health are being integrated
into care as a viable means of providing
services. In the years since the 1997
Report to Congress on Telemedicine, substantial
progress has been made in both the quality
and cost of the technology, but regulatory
reforms have progressed at a slower pace.
Thus far, only the Federation of State
Medical Boards and the National Council
of State Boards of Nursing have officially
proposed licensure models to address practice
across state lines. As consumers recognize
telemedicine as a viable option for care,
pressure will escalate for equity in access
to health care providers via technology
rather than traveling substantial distances
for the same care. Patient's Rights advocates
are likely to bring additional public
attention to this concern.
Potential
strategies to advance development of sound
licensing policy include:
Convene
a blue ribbon panel of key leaders in
the health professions' licensure and
regulatory fields to propose strategies
and approaches which ensure that licensure
policies do not pose a barrier to persons
needing to access health services via
telehealth.
The proposed
objectives for this Licensure Roundtable
would include:o Identification of the
current status of licensure regulations
among the various health professions engaged
in telehealth practice.
- Update
from state boards about the frequency
and nature of questions related to practice
across state lines.
- Identification
of current and potential barriers to
the use of telehealth.
- Analysis
and evaluation of potential resolution
to licensure barriers.
- Development
of strategies to ensure sound legal
authority for practice, monitoring of
professional practice and adherence
to standards while facilitating telehealth.
- Proposed
timeframe for implementation of identified
strategies.
- Explore
the possibility for regional agreements,
especially among medical boards in areas
in which care frequently occurs across
state lines. Demonstration projects
could be developed to evaluate the effectiveness
of multi-jurisdictional oversight of
medical practice.
- Patient's
Rights legislation at the state and
federal levels should be monitored for
potential inclusion of language ensuring
that patients are able to access the
most expert providers without having
to physically travel to do so.
- Create
educational material ("show and
tell") to ensure that state medical
boards understand the practice environment
in which telemedicine occurs, as well
as the expectation that quality standards
are not compromised. The emphasis should
be on benefits to patients as well as
protecting patient safety.
- Ensure
that medical board members visit telemedicine
programs and understand practice patterns
and quality assurance mechanisms, with
special emphasis on quality, cost-effective
access for people in remote areas.
- Telemedicine
providers should ensure that regulators
in all applicable professions are informed
about the options and benefits for telepractice
and have a knowledge base to make sound
regulatory decisions.
- Telemedicine
providers could offer to participate
in policy discussions, task forces,
committees, etc, to ensure regulatory
policies which benefit the all citizens
of the state, especially those in remote
or underserved areas.
Conclusion
Telehealth presents new and challenging
legal issues for both providers and regulators
in the area of interstate medical practice.
Laws and regulations that often predate
the widespread use of the Internet are
now looked to for guidance in dealing
with legal questions on the cutting edge
of information and communications technology.
This technology can be a mixed blessing
for patients, though. On one hand, it
could open the door for a wave of new
fraudulent or dangerous medical practices.
On the other hand, telemedicine offers
tremendous possibilities in enhancing
cost-effective access to care, especially
to underserved areas. In the end, the
best way to maximize the benefits of telemedicine
and minimize its risks is to promote an
effective dialogue between providers,
patients, and regulators.
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