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AN OVERVIEW OF STATE LAWS AND APPROACHES
TO MINIMIZE LICENSURE BARRIERS
 

Linda Gobis, RN, FNP, JD, Associate, Kravis, Gass & Webe
Menomonee Falls, WI
ljg@kravit_gass-weber.com
From: Telemedicine Today Magazine, Vol. 5, #6 and Vol. 6, #1

A tour de force of legal documentation, with exhaustive references and tables. The author’s strongly worded closing comment, "An interstate or national licensure system would better serve individual physicians and the practice of medicine nationwide," is challenged by some pundits who fear that national licensure would not adequately protect patient interests. Let us know if you’d like to contribute your thoughts to the debate.

Telemedicine can be broadly defined as the use of telecommunication technologies to provide medical information.1 A telemedicine system can be as simple as a computer hookup to a medical reference source or as advanced as robotic surgery.2 Teleradiologists and telepathologists use telecommunications to send radiographs and specimens for diagnostic or consultation purposes. Pacemakers, electrocardiograms and oxygen saturations can be evaluated electronically by telecardiologists. Computer enhancement assists in the diagnosis and treatment of skin lesions in teledermatology. Electronic stethoscopes can also be used to auscultate heart and lung sounds during electronic house calls in tele-home health care.

Although this sounds like "star wars technology", one author has speculated that many U.S. physicians will be directly or indirectly involved in clinical telemedicine by the year 2000.3 Several barriers to the expansion of telemedicine exist: 1) inadequate information infrastructure; 2) regulatory distortions, limitations on competition and fragmented demand; 3) public and private reimbursement policies that do not compensate for telemedicine services; 4) physician licensing and credentialing rules that discourage practicing telemedicine within states and across state and national boundaries; 5) concerns about malpractice liability; and 6) concerns about confidentiality of patient information.4 This article will focus on licensure issues and barriers.

Licensure & Liability Issues

Since telemedicine involves practicing medicine across state and/or international borders several licensure questions arise. Must a physician be licensed in the state or nation where he is located, the state or nation where the telecommunication connection is being made, or both? In 1994, the American College of Radiology recommended that physicians who interpret teleradiology images maintain a license "appropriate to delivery of radiologic service at both the transmitting and receiving sites.5 The College of American Pathologists suggested that a physician be licensed in the state where the patient is located.6 (Although no licensure standards or guidelines currently exist for the practice of international telemedicine, the same principles should apply.) Consider a physician who physically practices in his home state and provides telemedicine services to patients in five other states or nations. If licensure is required in all jurisdictions, the physician would have to complete one in-state and five out-of-state or international applications for licensure, with six sets of accompanying documentation, and pay six registration fees. Registration fees in the U.S. range from $100 in PA to over $1,000 in CA and TX.7 Moreover, forty of the fifty states require a physical appearance before the local licensing board.8 Thus, obtaining and maintaining multiple licenses can be extremely burdensome.

Once licensed in all states and/or nations, several liability questions arise. If direct patient telemedicine care results in a poor outcome does this constitute malpractice? If so, can the patient sue in the state or nation where the patient is located, the state or nation where the practitioner is located, or both? Should plaintiffs be allowed to ‘forum shop’ to obtain the most beneficial statute of limitations or tort reform cap on damages? Because these questions remain unanswered, telemedicine practitioners must check with their malpractice insurer to determine if their policy covers practicing telemedicine and practicing medicine across state and/or international boundaries.

Model Act

In April 1996, the Federation of State Medical Boards developed a Model Act to regulate the practice of medicine across state lines to respond to telemedicine issues. This Act would require physicians practicing medicine across state lines, by electronic or other means, to obtain a special license issued by a state medical board.9 The license would be limited to practicing across state lines in another state and would not allow physicians physically to practice medicine in the other state unless a full and unrestricted license were obtained.

This special purpose license would only be required if a physician "regularly or frequently" engages in telemedicine. Each state medical board would define what "regular or frequent" means. A license would not be required if a physician practices across state lines less than once a month, or the practice is less than 1% of the physician's diagnostic or therapeutic practice or less than ten patients annually. The Act would exempt physicians who engage in practicing across state lines in an emergency. Finally, the physician would be subject to the Medical Practice Act of the issuing state and to the regulatory authority of that state's medical board. To date, no states have adopted the Model Act.

State Telemedicine Licensure Laws

Since 1994, twenty states have passed laws which specifically address telemedicine licensure. (See Table 1.) Over half the states revised their definitions of the practice of medicine. KS revised its definition to include "every person, regardless of location, who performs an act...or issues an order for services which constitute the practice of the healing arts.10 AL, IN, MS, OK and SD expanded their definitions to include diagnostic or treatment services provided through electronic means or communications.11 OK also requires licensure if medical services are provided in an "ongoing regular arrangement12 and IN requires licensure if services are provided on "a regular, routine and non-episodic basis."13 In other words, OK and IN exempt out-of-state physicians from licensure if they provide telemedicine services on an irregular or episodic basis. Alabama has been the only state to define "irregular or infrequent." Irregular means less than twelve patients/calendar year or less than 1% of a physician’s practice.14 Five states -- AZ, ID, NM, TX and UT -- revised their definitions to include medical services are provided by any medium, means, methods, devices or instrumentalities.15 TX specifically identifies x-rays and pathology specimens as falling within that definition.16 UT's statute indicates services must be by an individual outside UT for any human within the state.17 Finally, six states’ definitions detail what constitutes telecommunications. AZ, CA, OK and TX include the delivery, diagnosis, consultation, treatment or transfer of medical data and education using interactive audio, video, data communications or other electronic media.18 HI and NV include the use of equipment that transfers medical information electronically, telephonically or by fiber optics.19

Five states revised their licensure requirements to specify circumstances under which full licensure is required for out-of-state physicians. CO and TX require full licensure if a physician has an office or a place for seeing, examining or treating patients in the state.20 Licensure is required for out-of-state physicians if they open an office, receive calls or appoint a place to meet patients in HI and ID.21 California requires licensure for out-of-state physicians if patients are directly involved in the telemedicine interaction.22

Very specific telemedicine laws were adopted by eight states. AL and TN instituted a special purpose license based on licensure in another state.23 FL's law is restricted to electronic images. Licensure is required if a physician orders electronic communications, diagnostic imaging or treatment services for a patient in FL.24 IL and NM created an out-of-state exception for providing emergency medical services to in-state patients in immediate preparation for or during interstate air or ground transit.25 AZ, CA and OK passed provisions which detail the procedures for written and verbal informed consent.26 Finally, two states have laws which address jurisdictional matters. AL subjects out-of-state physicians to the jurisdiction of AL boards and commissions.28 IL requires that disciplinary actions occur in IL.28

Forty six of the fifty states have out-of-state consultation exceptions.29 (IL, LA, ME and NM do not.)30 These exceptions allow physicians to consult on out-of-state patients under limited circumstances. Although most of the out-of-state consultation exceptions do not specifically discuss telemedicine or telecommunications, many states such as CO have narrowed their laws as a method of restricting out-of-state practitioners.31 Nineteen states did so in conjunction with promulgating telemedicine laws.32 (See Table 1) CT merely narrowed its licensure exception to physicians who "render temporary assistance to or consult with a physician licensed in CT."33 Four states–CA, GA, HI and OK–require that the in-state physician maintain ultimate authority over the patient for the out-of-state consultation exception to apply.34

Pending State Telemedicine Licensure Bills

At least ten states have telemedicine licensure bills pending.35 (See Table 2) Almost all propose amendments to their definitions of the practice of medicine. CT, FL, MD, MT, NH, NC and PA would not require licensure for out-of-state physicians unless medical services or consultations were provided on a regular or routine basis.36 CT’s bill would add written and verbal informed consent requirements to their existing telemedicine laws.37 Eight states -- CT, FL, MD, MT, NH, NC, PA and WA -- have amendments to alter the circumstances under which out-of-state physicians can consult without being licensed.38 FL requires the in-state treating physician to maintain primary or ultimate authority over the patient for the out-of-state consultation exception to apply.39 MD and MT have proposed special licenses or certificates for the practice of telemedicine.40 Finally, three states have bills which address jurisdictional matters. MT’s bill requires that telemedicine related disciplinary actions be brought in MT.41 MT and NC require that telemedicine tort or malpractice claims be brought in state.42 MT and PA allow criminal prosecution for the practice of telemedicine and the unlicensed practice of medicine respectively.43

Individual State Licensure

Licensure systems for practicing medicine across state and international boundaries fall into three basic categories–individual state, interstate, or multistate and national licensure. Each model will be discussed in turn.

All fifty states in the U.S. have laws governing the practice of medicine.44 These laws were enacted under the police power reserved to the states by the U.S. Constitution to adopt laws to protect the health, safety and general welfare of their citizens.45 In addition, most state statutes delegate authority for enforcing licensure laws to the state Boards of Medical Examiners.46 Thus, legal precedent supports maintaining single state licensure.

Two associations have taken positions on the telemedicine licensure issue. At its 1996 annual meeting, the American Medical Association rejected a proposal for interstate licensure. Instead, it adopted the policy that licensure requirements should be developed by individual states and their medical boards.47 In its Telemedicine Action Report, the Western Governors' Association recommended establishing a task force to draft a Uniform State Code for Telemedicine Licensure and Credentialing (similar to the Uniform Commercial Code).48 The report suggested the task force consider such issues as: definition(s) of telemedicine, simplified licensing of individuals, licensure of networks, and requirements and grants of credit for continuing medical education.

One way to minimize the current burdens of individual state licensure is an expedited licensure process utilizing reciprocity or endorsement. SD and TN, for example, allow reciprocity for the practice of telemedicine if another state's or country's requirements are not less stringent than theirs.49 The Western Governors' Association also recommended that its task force explore the possibility of expanded interstate reciprocity in licensing and credentialing.50 NM is one of several states which allows telemedicine licensure by endorsement if a physician otherwise meets NM's Medical Practice Act requirements.51

Alternatively, special licenses limited to the practice of telemedicine could be utilized. These restricted licenses will only be effective if they simplify and expedite the application process. Such an approach was suggested by the Federation of State Boards of Medicine's Model Act. AL and TN are currently the only states which have adopted a special license, but MD and MT are considering that option.

A state-based system allows adaptation of regulations and requirements to local standards, needs and expectations. However, this system is burdensome to the physician in terms of time, expense and varying licensure requirements. This coupled with the patchwork of state telemedicine, medical record, patient confidentiality and mandatory reporting laws along with differing medical practice acts quickly becomes a legal quagmire. This problem will only be exacerbated for physicians who also practice telemedicine internationally.

Interstate Licensure

Because of the inconsistencies and lack of coordination between state medical boards, an interstate or multistate licensure system seems reasonable. Essentially, this is a compromise between individual state and national licensure. Mutual recognition is a method of interstate licensure in which licensing entities enter into agreements to legally recognize the licensure policies and processes of a licensee’s home state and, therefore, a separate license is not required. The European Community and Australia allow physicians to practice in any of the member countries by mutual recognition.52

The Telemedicine Interstate Licensure White Paper by the Center For Telemedicine Law recommends a uniform interstate licensure system.53 The White Paper advocates that such a system establish consistent licensure requirements and allow physicians to qualify for practice in another state without significant delays and costs. It should also define which law governs the professional conduct of a physician practicing across state lines and holding a license in both states and not subject the physician to the demands of separate and inconsistent state laws.

In August 1997, the National Council of State Boards of Nursing endorsed a mutual recognition model for nursing licensure.54 Under this concept boards of nursing agreed to work toward an interstate compact under which registered nurses who hold a license in one state will be able to practice in any state which adopts the compact, provided they follow the laws and regulations of the state in which they are practicing.55 A special session of the National Council’s Delegate Assembly will be held in December 1997 to reach agreement on the interstate compact which will be forwarded to state legislatures for adoption as early as January 1998.

Interstate licensure has the advantage of allowing a physician to practice in any of the participating states. The larger the regions, or the fewer the number of interstate agreements, the less burdensome this licensure system should be on the individual physician. It should also facilitate licensure in other states by reducing variances in licensure requirements. On the other hand, it may require several states to collectively agree on a set of uniform core requirements such as education, training, board certification and restrictions for impaired practitioners. Because of the large number of current inconsistencies, agreement on uniform requirements may be difficult but not impossible. This system also runs the risk of duplicative efforts at the state and regional level with two governmental entities working at cross purposes.

Alternatively, interstate licensure could be established by use of an interstate compact as was done by the National Council of State Boards of Nursing. Although licenses are mutually recognized in multiple states, individual states retain the authority to set educational, behavioral and competency requirements. This approach not only avoids collective agreement on uniform core requirements, but also avoids the risk of duplicative efforts as described above. On the other hand, an interstate compact places responsibility on the individual physician for compliance with all applicable state laws such as confidentiality, mandatory reporting and informed consent. This could be very burdensome on the physician who practices in a large number of states.

National Licensure

Many factors favor a national licensure system. First, basic educational and competency requirements for obtaining an initial state medical license have become relatively standardized. All states now require new applicants to graduate from an accredited medical school and pass the United States Medical Licensing Exam (USMLE).56 Second, the National Practitioner Data Bank collects information about physician privilege and licensure matters nationwide.57 Third, the federal government already has the authority to regulate and set standards in several areas of health care.58 Fourth, national licensure has successfully been adopted by the Veterans Administration, Indian Health Service and Public Health Service. Fifth, the Joint Working Group on Telemedicine (JWGT) already coordinates federal telemedicine programs. The Telecommunications Act of 1996 requires the Secretary of Commerce, in consultation with the Secretary of HHS, to report to Congress concerning the activities of JWGT regarding patient safety, the efficacy and quality of services provided and other legal, medical and economic issues related to the utilization of advanced telecommunications services for medical purposes.59 One issue on the JWGT agenda is consideration of a national system of licensure for physicians.

A national licensure system with uniform requirements and a centralized database would permit physicians to practice anywhere in the U.S. without multiple license applications. This would eliminate the delays, expense and burdens of duplicative documentation in the current single state system. It would resolve inconsistencies in state telemedicine laws and eliminate the burden of documenting compliance with multiple sets of state laws. It would also be more consistent with licensure systems in other nations such as the thirteen Caribbean countries that have developed a multinational nursing licensure system. In 1989 these countries agreed on a core set of nursing courses to be taught at the undergraduate level and adopted a uniform licensure exam for all countries.60 Conversely, shifting state database information to a central repository would be an immense undertaking. In addition, funding is likely to be limited.

Conclusion

Recent years have seen a flurry of activity in numerous state legislatures related to telecommunications and the practice of medicine across state lines. This has only exacerbated the inconsistencies in state laws governing medical practices. Moreover, the current single state licensure system is slow, duplicative and expensive which serves as a further deterrent to telemedicine practitioners. An interstate or national licensure system would better serve individual physicians and the practice of medicine nationwide. It would also place U.S. physicians in a better position to practice telemedicine internationally.

TABLE 1. TELEMEDICINE LICENSURE LAWS*

dx=diagnosis; dxic=diagnostic; tx=treatment; physc=physician; tm=telemedicine

STATE LICENSURE PROVISION

DEFINITION OF THE PRACTICE OF MEDICINE

CRITERIA FOR OUT-OF-STATE PHYSICIAN LICENSURE

UNIQUE PROVISIONS

AL SB 341 (eff. 7/1/97)

A written or otherwise documented medical opinion regarding the dx or tx of an AL pt by an out-of-state physn using electronic or other means of transmitting pt data from within AL & the tx of an AL pt by an out-of-state physn via the transmission of pt data by electronic or other means.

Regular provision of interstate pt care (i.e., 10 times or more / calendar year or 10 or more pts per year or more than 1% of a physn’s practice) & informal consultations for which compensation is received or where a written or documented opinion is made.

1. Out of state exception for:

a. informal consultations that are not compensated & do not result in a written or otherwise documented opinion for dx or tx by the out-of-state physn.

b. Irregular or infrequent interstate practice of medicine.

c. Medical emergencies.

2. Allows for special purpose license to practice across state lines.

3. Subjects special purpose license holder to the jurisdiction of AL boards and commissions.

AZ Rev Stat Ann '' 32-1401 & 32-1421 (1996)

The dx, the tx or the correction of or the attempt or the holding of oneself out as being able to dx, treat or correct any & all human diseases, injuries, ailments, infirmities, deformities, physical or mental, real or imaginary, by any means, methods, devices or instrumentalities.

Provision of all pt care & multiple or frequent consultations.

1. Out-of-state consultation exception for single or infrequent consultations of specific pt(s).

AZ Rev Stat Ann '' 36-3601 to 36-3603

The practice of health care delivery, dx, consultation, tx, transfer of medical data & education through interactive audio, video or data communications.

Provision of all pt care & multiple or frequent consultations.

2. Written & verbal informed consent requirements.

3. Specifically addresses tm.

CA Bus & Prof Code ' 2290.5 & CA Health & Safety Code ' 1374.13 (West 1996) (eff. 9/24/96)

The practice of health care delivery, dx, consultation, tx, transfer of medical data & education using interactive audio, video or data communications. Neither a telephone conversation nor an electronic mail message constitutes tm.

Direct pt involvement in tm interaction.

1. Verbal & written informed consent requirements.

2. Out-of-state exception for:

a. Consultations

b. Emergencies

c. Dept of Corrections pts

3. Out-of-state practitioner cannot have ultimate authority over the care or primary dx of a pt.

4. Law specifically aimed at tm.

5. All laws regarding surrogate decision making apply.

CO Rev Stat ' 12-36-106(3) (1996)

 

Provision of all pt care that is not done on an occasional basis or if the physn has an established or regularly used hospital connection in CO or if the physn maintains or is provided with an office or other place in CO for pt services on a regular basis.

1. Out-of-state exceptions for:

a. Emergencies.

b. Occasional pt cases.

CT Gen Stat ' 20-9 (West 1996)

 

 

1. Statutory exceptions;

a. Sudden emergencies;

b. Consultations with any physn or surgeon licensed in CT.

FL Stat Ann '' 458.3255 & 458.303 (West 1997)

(eff. 7/1/95)

Does not include the practice of medicine utilizing telecommunications other than electronic images.

Ordering electronic communications, dxic - imaging or tx services for a pt in FL.

1. Restricted to electronic images only.

2. Out-of-state consultation exception when meeting with a duly licensed FL physn in consultation.

GA Code Ann ' 43-34-31.1 (1997)

(eff. 7/1/97)

A person who is physically located in another state or foreign country & who, through the use of any means, incl electronic radiographic, or other means of telecommunication, through which medical information or data is transmitted, performs an act that is part of a pt care service located in this state, incl but not limited to the initiation of imaging procedures or the preparation of pathological material for examination, & that would affect the dx or tx of the pt.

Provision of all pt care & regular or routine consultations.

1. An out-of-state or foreign practitioner cannot have ultimate authority over the primary care or dx of a pt located within GA.

2. Statutory exceptions:

a. Out-of-state consultations (at the request at an in-state physn) on an occasional basis.

b. Out-of-state consultations in emergencies without compensation or to a medical school.

c. Guests of a medical school engaged in professional education lectures.

HI Rev Stat '453-2 (1997)

Includes in-person, mail, electronic, telephonic, fiber-optic or other tm consultations.

1. All pt care where the out-of-state physn is responsible for the pt’s care.

2. Opening an office in HI.

3. Appointing a place to meet pts in HI.

4. Receiving calls in HI.

1. Out-of-state tm consultations exception if:

a. Physn licensed in HI retains control & remains responsible for the pt’s care.

ID Code '' 54-1803(1)(a) &

54-1804(1)(b) (Michie 1996)

To investigate, dx, treat, correct or prescribe for any human disease, ailment, injury, infirmity, deformity or other condition, physical or mental, by any means or instrumentality.

1. Opening an office in ID.

2. Appointing a place to meet pts in ID.

3. Receiving calls in ID.

1. Statutory exceptions:

a. Out-of-state consultations

b. Invitees for lectures, clinics or demonstrations to further medical education.

IN Code '' 25-22.5-1-1.1 & 25-22.5-1-2 (1996)

(eff. 3/10/96)

Providing dxic or tx services to a person in IN when the dxic or tx services: a) are transmitted through electronic communications; & b) are on a regular, routine & non-episodic basis.

Regular, routine or non-episodic consultations & patient care

1. Statutory exception for out-of-state second opinions between physns or by pt request.

2. Statutory exception for out-of-state or country consultations when called in by a physn licensed in IN.

1) IL Rev Stat ch 225, para. 60/3 (1996)

 

 

 

2) IL Rev Stat ch 225, para 60/49.5 (1997)

1) None.

2) The practice of medicine, includes but is not limited to, rendering written or oral opinions concerning dx or tx of a pt in IL by a person located outside the State of IL as a result of transmission of individual pt data by telephonic, electronic or other means of communication from within IL.

1) a. All pt care, except interstate transit.

b. All consultations.

2) Provisions of all pt care & non-periodic consultations.

 

1. Out-of-state exception for providing medical services to pts in IL during a bona fide emergency in immediate preparation for or during interstate transit.

2. No out-of-state consultation exception.

1. Statutory exceptions for out-of-state periodic consultations, 2nd opinions & dx or tx services following care or tx originally provided to the pt in the state in which the physn is licensed.

2. Disciplinary actions must occur in IL.

KS Admin Regs 100-26-1 (1995)

(eff. 6/20/94)

KS Stat Ann ' 65-28,100 (1995)

Each person, regardless of location, who performs an act . . . or who issues an order for services which constitute the practice of the healing arts.

The performance of any health care services, incl pt care & consultations.

1. Allows temporary license for an out-of-state visiting professor for postgraduate programs or medical continuing education.

MS Code Ann ' 73-25-34 (1997)

(eff. 7/1/97)

Tm includes one or both of the following: (1) rendering of a medical opinion concerning dx or tx of a pt within the state by a physn located outside the state as a result of transmission of individual pt data by electronic or other means from within the state to such physn or his agent or (2) the rendering of tx to a pt within this state by a physn located outside of this state as a result of transmission of individual pt data by electronic or other means from within this state to such physn or his agent.

Provision of all pt care & consultations not sought by a physn licensed in MS.

1. Statutory exception for an opinion, evaluation or tx that is sought by a physn licensed in MS & the MS physn has already established a doctor-patient relationship with the person evaluated or treated.

2. Outlines various powers & responsibilities of the Dept of Health relative to promulgating rules & regulations, collecting data & the delivery of health care services via tm.

NV Rev Stat '' 630.020 & 630.047 (1995)

The dx or tx of human illness & diseases by using equipment that transfers information concerning the medical condition of the pt electronically, telephonically or by fiber optics.

Provision of all pt care & consultations on a regular basis.

1. Statutory exception for out-of-state consultations done on an irregular basis.

NM Stat Ann '' 61-6-6, 61-6-14 & 61-6-17 (Michie 1996)

Offering or undertaking to dx, correct or treat in any manner or by any means, methods, devices or instrumentalities any disease, illness, pain, wound, fracture, infirmity, deformity, defect, or abnormal physical or mental condition of any person.

Provision of t care other than on a temporary basis or in emergencies.

1. Statutory exception for the practice of medicine by a physn, unlicensed in NM, who performs emergency medical procedures in air or ground transportation of a pt from inside of NM to another state or back.

2. Allows temporary 3 month license for out-of-state physns to assist in teaching, conducting research, performing specialized dxic & tx procedures, implementing new technology & physn education. A NM physn must sponsor & associate with the out-of-state physn during the time the out-of-state physn practices in NM.

OK Stat Ann tit 59

' 492(c)(3)(b) (West 1995). (eff. 5/95)

The performance by a person outside of this state, through an ongoing regular arrangement, of dxic or tx services through electronic communications for any pt whose condition is being diagnosed or treated within this state.

Provision of all pt care & consultations on a regular basis.

1. Statutory exception for brief, actual out-of-state consultations with a specific physn licensed in OK.

OK Stat Ann tit 36 '' 6801-6804 (eff. 7/1/97)

The practice of health care delivery, dx, consultation, tx, transfer of medical data, or exchange of medical education information by means of an interactive audio, video, or data communications. Tm is not a consultation provided by telephone or facsimile machine.

Provision of all pt care & consultations on a regular basis.

2. Written & verbal informed consent requirements.

3. The practitioner who is in physical contact with the pt must have ultimate authority over the care of the pt.

SD Codified Laws Ann. '' 36-4-41 & 36-4-19 (1996) (eff. 3/3/95)

Any nonresident physn or osteopath who, while located outside SD provides dxic or tx services through electronic means to a patient located in SD.

Provision of all pt care & consultations on a regular basis.

1. Out-of-state consultation exception for consults on an irregular basis.

2. Reciprocity is accorded if another state’s requirements are not less than those of SD.

TN Code Ann. ' 63-6-204 &

63-6-209(b) (1996)

(eff. 5/15/96)

Any person who treats, or professes to dx, treat, operates on or prescribes for any physical ailment or any physical injury to or deformity of another.

Provision of all pt care, incl tm. Number or frequency of consultations not specified.

1. Allows special license for tm, based on licensure in another state.

2. Out-of-state consultation exception.

3. Reciprocity is accorded if another state’s or country’s requirements meet or exceed TN’s.

TX Rev Civ Stat art 4495b

' 3.06 (West 1996)

(eff. 6/16/95)

A person who is physically located in another jurisdiction but who, through the use of any medium, incl an electronic medium, performs an act that is part of a pt care service initiated in TX, incl the taking of a x-ray examination or the preparation of pathological material for examination, that would affect the dx or tx of pt.

1. Provision of all pt care, incl via telecommunications.

2. An office in TX.

3. A place for seeing, examining or treating pts in TX.

4. Non-episodic consultations.

1. Out-of-state consultation exceptions for:

a. Episodic consultation services at the request of a person licensed in TX who practices in the same medical specialty.

b. Consultation services to a medical school or educational institution

TX Rev Civ Stat art 21.53 '' 1-6 (West 1997) (eff. 9/1/97)

The use of interactive audio, video, or other electronic media to deliver health care, incl dx, consultation, tx transfer of medical data & medical education.

 

 

2. Out-of-state exception for services provided by telephone or facsimile machine.

UT Code Ann. ' 58-67-102 (1996)

(eff. 7/1/96)

To dx, treat, correct or prescribe for any human disease ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, or to attempt to do so, by any means or instrumentality, & by an individual in UT or outside the state upon or for any human within the state.

Provision of all pt care, incl that provided by telecommunications.

 

 

 

* 46 of the 50 states have out-of-state consultation exceptions. (IlL, LA, ME & NM do not.) These statutory exceptions would allow for out-of-state tm consultations. However, if the medical licensure or license exemption provisions do not specifically address tm, telecommunications, electronic communications, electronic medium or instrumentality of any type, the out-of-state consult provisions are not included in this table.

 

TABLE 2. 1997 PROPOSED TELEMEDICINE LICENSURE BILLS

CO

HB 1050

 

Provision of all pt care for more than 12 pts in a calendar year or if the physn regularly uses a hospital connxn in CO or maintains or is provided with an office or other place for regular rendering of pt services in CO.

1. Pt must be under the care of a CO physn or a licensed person acting under the direction of a referring CO physn.

2. Any interpretations of tests or images must be given or sent to the CO physn or person acting under the drxn of the referring CO physn.

CT

HB 6876

The use of interactive audio, video or data communications, incl S&F technology, in the practice of medicine & surgery.

Provision of all pt care, regular consultations or ongoing, regular contractual agreements for the primary dx of pathology specimens & radiographic images.

1. Written & verbal informed consent requirements.

2. Statutory exceptions:

a. Sudden emergencies.

b. Out-of-state consultations on an irregular basis.

FL

1) SB 1308

2) HB 1855

1) Any ongoing, regular or contractual arrangement whereby a physn, regardless of residency in FL or in another state, provides through electronic communications, dxic or tx services to any person located in FL.

2) Any physn, wherever located, who has primary authority over the care or dx of a pt located in FL.

1) Provision of all pt care, regular consultations & ongoing, regular arrangements to provide written reports of radiographic evaluations.

2) All pt care where the physn exercises primary authority over the pt’s care & diagnosis & ongoing, regular arrangements to interpret radiographic images.

1. Out-of-state exception for consultations through electronic communications on an irregular basis.

2. Out-of-state consultation exception for consultations when the consultant does not exercise primary authority over pt’s care & dx.

MD

SB 93

Doing, undertaking, professing to do or attempting to do medical dx, healing, tx or surgery through electronic transmission or other mechanisms of interstate commerce into MD.

Provision of all pt care & consultations on a regular basis.

1. Allows special purpose tm license.

2. Statutory exception for irregular or infrequent consultations (no more than 10 pts/yr or no more than 1% of the physn’s dxic or therapeutic practice), emergencies or discussions regarding a pt with a physn licensed in MD.

MS

SB 2378

HB 1504

The use of information technology to deliver medical services & information from one location to another

 

 

 

MT

HB 513

The practice of medicine, by a physn located outside of the state, who performs an evaluative or therapeutic act or transmits, by any means, methods, devices, instrumentalities, information, or an opinion concerning the dx, tx, or correction of a pt’s condition, ailment, disease, injury or infirmity, whether physical or mental, into MT.

Information or opinions provided for compensation, non-occasional pt care & as regularly used connection with MT (i.e., office or other place for the reception of transmissions from the out-of-state physn or contract with a person or entity in MT)

1. Out-of-state exceptions for:

a. Occasional services.

b. Informal consultations without compensation.

2. Allows tm certificate based, in part, on:

a. Licensure in another state;

b. Board-certification; and

c. No malpractice claims in excess of $10,000 within the prior 5 years.

3. Tort, contract, equitable, criminal, licensure & disciplinary actions must occur in MT.

NH

SB 170

Ongoing, regular or contractual arrangement whereby a physn, regardless of residency in NH, provides through electronic communications, dxic or tx services to any other person in NH, incl written reports of dxic evaluations of radiographic images to in-state physns or pts.

Regular provision of pt care or written radiology reports.

1. Out-of-state exception for consultations on an intermittent basis.

NC

HB 814

SB 780

(Companion bills)

To diagnose, attempt to dx, 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 by use of any electronic or other mediums.

Provision of all pt care & regular consultations.

1. Out-of-state exception for consultations on an irregular basis.

2. Allows patients to bring malpractice claims in NC against out-of-state physns who practice medicine or surgery by use of any electronic or other mediums in NC.

3. Give NC medical board jurisdiction.

PA

SB 937

A physn located outside of PA rendering a written or otherwise documented medical opinion concerning diagnosis or tx of a pt in PA or for the purpose of rendering tx to a pt in PA as a result of transmission of individual patient data, by electronic or other means, from within PA a location outside PA.

Provision of pt care, initiated in PA, that would directly affect the dx or prognosis of the pt & non-episodic consultations.

1. Out-of-state exceptions for:

a. Episodic consultations requested by a PA doctor in the same specialty,

b. Consultations to a medical school or residency treating program,

c. Emergency disaster situations if the pt is not charged for the medical assistance.

2. Allows criminal prosecution & injunctions for the unlicensed practice of medicine.

3. Bill specifically aimed at tm & teleradiology.

WA

HB 1216

Advice or direction rendered by a non-resident physn taking primary responsibility for a pt’s care that directly determines the course of care without independent decision making by the resident physn attending the pt.

Provision of direct pt care without independent decision making by an in-state physn.

1. A non-resident physn providing direct care through tele-electronic means must be sponsored by a physn both licensed & residing in the State of WA.

2. Statutory exception for out-of-state dx or consultation.

 

REFERENCES

1. Perednia, DA & Allen, A. Telemedicine Technology and Clinical Applications, JAMA 1995; 273(6), 483-488.

2. General Accounting Office. Telemedicine: Federal Strategy Is Needed to Guide Investments. Washington D.C.: Chapter Report 97-67, February 14, 1997.

3. Perednia, p. 483.

4. A Vision for Telemedicine. The Western Governors= Association Telemedicine Action Report. Denver: Western Governors= Association, 1995.

5. The American College of Radiology. ACR Standard for Teleradiology. Reston: 1996.

6. College of American Pathologists. Practice of Telemedicine. Washington, D.C.: November, 1995.

7. Center For Telemedicine Law, February 12, 1997. Telemedicine Interstate Licensure White Paper. [Online]. Available: HTTP:http://www.arentfox.com/ctl/ctlwhite.html [1997, March 12].

8. Ibid., p. 6.

9. The Federation of State Medical Boards of the United States, Inc. A Model Act to Regulate the Practice of Medicine Across State Lines. Euless: April, 1996.

10. Kan. Admin. Regs. ' 100-26-1 (1995).

11. Alabama S.B. #341; Ind. Code ' 25-22.5-1-1.1 (1996); Miss. Code Ann. ' 73-25-34 (1997);Okla. Stat. Ann. tit. 59 ' 492C.3.b. (West (1995); S.D. Codified Laws Ann. ' 36-4-41 (1996).

12. Okla. Stat. Ann. tit. 59 ' 492C.3.b. (West 1995).

13. Ind. Code ' 25-22.5-1-1.1 (1996).

14. Alabama S.B. 341.

15. Ariz. Rev. Stat. Ann. ' 32-1401 (1996); Idaho Code ' 54-1803(1)(a) (Michie 1996); N.M. Stat. Ann. ' 61-6-6 J.(5) (Michie 1996); Tex. Rev. Civ. Stat. art. 4495b ' 3.06 (West 1996); Utah Code Ann. ' 58-67-102(8) (1996).

16. Tex. Rev. Civ. Stat. art. 4495b ' 3.06 (West 1996).

17. Utah Code Ann. ' 58-67-102(8) (1996).

18. Ariz. Rev. Stat. Ann. ' 36-3601 (1997); Cal. Bus. & Prof. Code ' 2290.5 (West 1996); Okla. Stat. Ann. tit. 36 ' 6802 (West 1997); Tex. Rev. Civ. Stat. art. and art. 4495 ' 3.06 (West 1996).

19. Haw. Rev. Stat. '453-2 (1997); Nev. Rev. Stat. ' 630.020 (1995).

20. Colo. Rev. Stat. ' 12-36-106(3) (1996); Tex. Rev. Civ. Stat. art. 4495b ' 3.06 (West 1996).

21. Haw. Rev. Stat. '453-2 (1997); Idaho Code ' 54-1804(1)(b) (Michie 1996).

                          22. Cal. Bus. & Prof. Code ' 2290.5 (West 1996).

                          23. Alabama S.B. #341; Tenn. Code Ann. ' 63-6-209(b) (1996).

24. Fla. Stat. Ann. ' 458.3255 (West 1997).

25. Ill. Rev. Stat. ch. 225, para 60/3 (1996); N.M. Stat. Ann. ' 61-6-17 (Michie 1996).

26. Ariz. Rev. Stat. Ann. ' 36-3602 (1997); Cal. Bus. & Prof. Code ' 2290.5 (West 1996); Okla. Stat. Ann. tit. 36 ' 6804 (West 1997).

                          27. Alabama S.B. #341.

                          28. Ill. Rev. Stats. Ch. 225, para 60/49 5 (1997).

29. Center For Telemedicine Law, p. 11.

30. Ibid.

31. Colo. Rev. Stat. ' 12-36-106(3) (1996).

32. Ala. S.B. #341 (1997); Ariz. Rev. Stat. Ann. ' 32-1421 & 36-3603 (1996); Cal. Bus. & Prof. Code ' 2060 (West 1996); Colo. Rev. Stat. ' 12-36-106(3) (1996); Fla. Stat. Ann. ' 458.303 (West 1997); Ga. Code Ann. ' 43-34-31.1 (1997); Haw. Rev. Stat. ' 453-2 (1997); Idaho Code ' 54-1804(1)(b) (Michie 1996); Ill. Rev. Stat. ch. 226, para. 6013 (1996); Ind. Code '' 25-22.5-1-1.1, 25-22.5-1-2 (1996); Kan. Admin. Regs. 100-26-1 (1995); Miss. Code. Ann. ' 73-25-34 (1997); Nev. Rev. Stat. ' 630.047 (1995); N.M. Stat. Ann. '' 61-6-14 & 61-6-17 (Michie 1996); Okla. Stat. Ann. tit. 59 ' 492D.8. (West 1995); S.D. Codified Laws Ann. ' 36-4-41 (1996); Tenn. Code Ann. ' 63-6-209 (1996); Tex. Rev. Civ. Stat. art. 4495b ' 3.06 (West 1996); Utah Code Ann. ' 58-67-102 (1996).

33. Conn. Gen. Stat. Ann. ' 20-9 (West 1996).

34. Cal. Bus. & Prof. Code ' 2060 (West 1996); Ga. Code ' 43-34-31.1 (1997); Haw. Rev. Stat. ' 453-2 (1997); Okla. Stat. Ann. tit. 38 ' 6804 (West 1997).

35. Colorado H.B. 1050; Connecticut S.B. 6876; Florida S.B. 1308 and H.B. 1855; Maryland S.B. 93; Mississippi S.B. 2378 & H.B. 1504, Montana H.B. 513; New Hampshire S.B. 170; North Carolina H.B. 814; Pennsylvania S.B. 937; Washington H.B. 1216.

36. Connecticut S.B. 225; Florida S.B. 1308; Maryland S.B. 93; Montana H.B. 513; New Hampshire S.B. 170; North Carolina H.B. 814; Pennsylvania S.B. 937.

37. Connecticut S.B. 6876.

38. Connecticut S.B. 6876; Florida S.B. 1308 & H.B. 1855; Maryland S.B. 93; Montana H.B. 513; New Hampshire S.B. 170; North Carolina H.B. 814 & S.B. 780; Pennsylvania S.B. 937; Washington H.B. 1216.

39. Florida H.B. 1855;

40. Maryland S.B. 93; Montana H.B. 513.

41. Montana H.B. 513.

42. Montana H.B. 513; North Carolina H.B. 814.

43. Montana H.B. 513; Pennsylvania S.B. 937.

44. Center for Telemedicine Law, p. 4.

45. Ibid.

46. Ibid., p. 13.

47. American Medical Association. Joint Report of Council on Medical Education and Council on Medical Service, The Promotion of Quality Telemedicine. Chicago: Proceedings of AMA House of Delegates, June 23-27, 1996.

48. The Western Governors' Association, p. 5.

49. S.D. Codified Laws Ann. ' 36-4-19 (1996); Tenn. Code Ann. ' 63-6-211(a) (1996).

50. Western Governors= Association, p. 5.

51. N.M. Stat. Ann. ' 61-6-13 (Michie 1996).

52. Maastricht Treaty.(199_).[Online]Available HTTP:http://europa.eu.int/cn/record/

mt/title2.html [1997, April 23]; Austl. C. Mutual Recognition Act 1992 No. 198 (1992); Andrew E. Dix, Australia Interstate Registration of Doctors: The Mutual Recognition Laws, 82(4) Federation Bulletin 230, 230-31 (1995).

53. Center For Telemedicine Law, p. 14.

54. Boards of Nursing Adopt Resolutionary Change for Nursing: Mutual Recognition Model of Nursing Regulation. National Council of State Boards of Nursing, Inc., Press Release, August 29, 1997.

                          55. Ibid, pg. 1.

                          56. Center for Telemedicine Law, p. 5.

57. 42 U.S.C. ' 11101 et seq. (1996).

58. Social Security Act, Part B. Peer Review of the Utilization & Quality of Health Care Services, 42 U.S.C. ' 1320 (1996); Clinical Laboratory Improvement Act, 42 U.S.C. ' 263a (1996); Mammography Quality Standards Act, 42 U.S.C. ' 2636 (1996); Occupational Safety and Health Act, 29 U.S.C. '' 651 et seq. (1996).

59. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

60. Telephone interview with Jane Weaver, Director of the International Nursing Center, American Nurses Foundation (April 7, 1997).

   
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