|
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). |
