Interstate Telemedicine Licensing is THE Legal Barrier

When I started researching telemedicine legal issues, I expected that liability would be a major topic. So I was quite surprised to discover that interstate licensing is actually the greatest legal impediment to the expansion of telemedicine across the United States.

While the Constitution grants states the authority to establish health care licensing standards, it also limits state rights to create barriers that inhibit interstate commerce, including the practice of health care. The convergence of inconsistent state licensing requirements with the technical potential to provide telemedical care across state lines raises legal concerns that remain unresolved.

• Competency and Practice Standards: Most states require that medical professionals be licensed to ensure that patients receive safe care are protected from incompetent practitioners. However, broad differences exist in licensing standards between states. States differ in defining the type of health care that must be licensed, which can lead to conflicting expectations between patients and care givers when medical care is delivered electronically. As an example, some states consider remote monitoring a type of delegated medical practice that does not require the same licensing requirements as direct medical care provided by nurses or physicians.

• Jurisdiction and Liability: Differences in state requirements also raise question about state jurisdiction and liability insurance questions. No guidance is in place that defines the legal rights and limitations of states to enforce compliance with licensing requirements. Additionally, because the laws and licensing requirements for interstate telemedicine are unclear, liability insurance does not always provide sufficient coverage for this area of clinical practice.

In a 1997 report to Congress, several potential solutions were presented. The proposed licensure models include:

• Endorsements refer to allowing states to grant licenses to health care professions already licensed by other states that have equivalent standards.

• Mutual Recognition would allow states granting licenses to enter into a legal agreement to accept the licensure policies and procedures of the out-of-state health professional’s licensing state.

• Reciprocity is a mutual agreement between two states where each state agrees to give licensed professionals of the other state equivalent privileges to practice.

• Registration occurs when a licensed health care professional licensed in one state notifies another state of an intent to practice in that state part time, with the agreement to comply with the other state’s legal authority and jurisdiction.

• Limited Licensure requires health care professionals to obtain licenses to practice a limited scope of services in other states.

• National Licensure provides for standardized licensing criteria administered by a state or national organization, which would allow health care professionals to receive a single license allowing them to practice through the United States.

• Federal Licensure would require that health care professionals would receive a Federal license to practice that is accepted throughout the United States.

To date, no federal legislation has been introduced to pilot any of these models, nor has Congress seriously considered any other proposed solutions. This is likely because control of professional licensures is a state constitutional right. However, in order for telemedicine to truly thrive in this country, practitioners must have legal licenses to practice it across state borders.

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References

Hutcherson, C. (2001). Legal Considerations for Nurses Practicing in a Telehealth Setting. Online Journal of Issues in Nursing. Vol. 6 No. 3, Manuscript 3. Retrieved 9 May.

Klein, S. & Manning, W. (1995). Telemedicine and the Law. Healthcare Information Management. Summer 1995.

Telemedicine Report to Congress. (1997). Legal Issues--Licensure and Telemedicine.

The Center for Telemedicine Law. (2003). Telemedicine Licensure Report.

Pendrak, R, & Ericson, P. (1996). Telemedicine and the law.

U.S. Department of Health and Human Services. (2003). Telemedicine Licensure Report.