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By
Joanne
Kumekawa,
MBA
Policy
Director,
OAT
May
1999
Issue: Licensure Update
The existing state laws that regulate
interstate practice of medicine or telemedicine
have not kept pace with the growing use
of telemedicine by health professionals
as well as the increase in consumer health
consultations via the Internet. How much
progress has been made on cross-state
licensure and other legal issues since
the publication of the 1997 Report
to Congress on Telemedicine?
Discussion
At the time the Report to Congress
on Telemedicine was published in January
1997, only 11 states had passed licensure
laws relating to telemedicine practice
across state boarders. Today, there are
approximately 20 states that have adopted
restrictive licensure laws for physicians,
and the number of states introducing restrictive
language has proliferated. To date, eight
states have introduced bills that make
licensure requirements more explicit for
out-of-state physicians and could potentially
limit a physician’s ability to practice
telemedicine across state borders. These
states include Arizona, Florida, Montana,
New Hampshire, North Dakota, Oregon and
West Virginia. In addition, Oklahoma has
introduced legislation requiring full
licensure for out-of-state homeopathic
physicians. However, a less restrictive
bill was introduced in Colorado, which
permits limited licensure for physicians
associated with the Shriners Hospitals,
who are licensed to practice in another
state.
Despite legislative setbacks for physicians
interested in practicing telemedicine
across states, there is a success story.
The nursing community has made significant
progress toward interstate licensure.
Two keys to their success have been the
ability to reach broad community consensus
on the need for interstate licensure and
the development of a widely accepted licensure
model based on mutual recognition called
the Interstate Nurse Licensure Compact.
The National Council of States Boards
of Nursing, Inc., hammered out the final
draft of this crucial standard in November
1998. With this compact in hand, the nurses
have successfully promoted the introduction
of legislation and the adoption of state
laws that may allow them to practice across
the boarders of those states that adopt
the compact.
Since early 1998, Arkansas, Utah and
Maryland have passed state laws that allow
mutual recognition for outside state nurse
licenses. Utah enacted the first interstate
nurse licensure compact in March 1998.
In February, Arkansas legislators signed
mutual recognition legislation into law
as Act 220 and Maryland adopted the Nurse
Licensure Compact in April. Four other
states have introduced mutual recognition
legislation: Nebraska (L 523), Texas (House
Bill 1342) Wisconsin (Assembly Bill 305/
Senate Bill 129) and North Carolina (Senate
Bill 194).
Background
Historically, states have had the authority
to regulate activities affecting the health,
safety and welfare of their citizens.
This means that states define the process
and procedures for granting a health professional
license, renewing a license, and regulating
medical practice within the state. The
Federal government does have the
authority to establish regulations --
such as those under Medicare -- that establish
specific professional requirements. However,
there is strong legal presumption against
federal preemption of state licensure
laws. Consequently, the states themselves
must find a way to harmonize their standards
and laws because their citizens are already
consulting doctors and other health professionals
via the Internet or using telemedicine
to gain access to health care at a distance.
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Telemedicine
Licensure Update
Background
The ability of United States health professionals
to practice across state or international
boundaries is essential to maximize the
efficient use of telemedicine technology.
Although telemedicine is still in its
infancy, health professionals have begun
to use telecommunications and information
technologies to provide health care at
a distance more frequently and have adopted
telemedicine more widely in specialties
such as telepsychiatry, teledermatology
and teleradiology. Telemedicine is also
being used successfully in settings such
as prisons and homes. Ultimately, the
demand for telemedicine may be driven
by the growing numbers of consumers seeking
access to health information and advice
over the Internet. However, cross-state
licensure issues as well as the lack of
reimbursement for telemedicine continue
to be key barriers to the growth of telemedicine.
Although healthcare through the use of
telemedicine technology inherently should
know no boundaries, health professionals
in the United States are licensed at the
state level. Historically, states have
had the authority to regulate activities
affecting the health, safety and welfare
of their citizens. This means that states
define the process and procedures for
granting a health professional license,
renewing a license, and regulating medical
practice within the state. The Federal
government does have the authority
to establish national regulations such
as those under Medicare that establish
specific professional requirements to
qualify for reimbursement. However, there
is a strong legal presumption against
federal preemption of state licensure
laws. Therefore, unless Congress acts
to regulate telemedicine licensure, the
states themselves must decide to harmonize
their standards and laws.
Outlined below are a number of general
licensure models that address cross-state
licensure issues in some fashion. In addition
to these general models, organizations
such as the American College of Radiology,
the Federation of State Medical Boards,
and the National Council of State Boards
of Nursing, Inc., have proposed specific
models.
General Licensure
Models
| Name |
Description |
| With a consulting
exception, a physician who is unlicensed
in a particular state can practice
medicine in that state at the request
of and in consultation with a referring
physician. The scope of these exceptions
varies from state to state. Most
consultation exceptions prohibit
the out-of-state physician from
opening an office or receiving calls
in the state. For most states, these
exceptions were enacted before the
advent of telemedicine and were
not meant to apply to on-going regular
telemedicine links. Some consulting
exceptions have also been allowed
to permit specific number per year. |
| Endorsement |
State boards
can grant licenses to health professionals
in other states that have equivalent
standards. Health professionals
must apply for a license by endorsement
from each state in which they seek
to practice. States may require
additional qualifications or documentation
before endorsing a license issued
by another state. Endorsement allows
states to retain their traditional
power to set and enforce standards
that best meet the needs of the
local population. However, complying
with diverse state requirements
and standards can be time consuming
and expensive for a multi-state
practitioner. |
| A licensure
system based on reciprocity would
require the authorities of each
state to negotiate and enter agreements
to recognize licenses issued by
the other state without a further
review of individual credentials.
These negotiations could be bilateral
or multilateral. A license valid
in one state would give privileges
to practice in all other states
with which the home state has agreements. |
| Mutual Recognition |
Mutual recognition
is a system in which the licensing
authorities voluntarily enter into
an agreement to legally accept the
policies and processes (licensure)
of a licensee’s home state.
Licensure based on mutual recognition
is comprised of three components:
a home state, a host state and a
harmonization of standards for licensure
and professional conduct. The health
professional secures a license in
his/her own home state and is not
required to obtain additional licenses
to practice in other states. The
nurse licensure compact is based
on this model. |
| Under a registration
system, a health professional licensed
in one state would inform the authorities
of other states that s/he wished
to practice part-time there. By
registering, the health professional
would agree to operate under the
legal authority and jurisdiction
of the other state. Health professionals
would not be required to meet entrance
requirements imposed upon those
licensed in the host state but they
would be held accountable for breaches
in professional conduct in any state
in which they are registered. California
has the authority to draft this
type of model. |
| Limited
Licensure |
Under a limited
licensure system, a health professional
would have to obtain a license from
each state in which s/he practiced
but would have the option of obtaining
a limited license for the delivery
of specific health services under
particular circumstances. Thus the
system would limit the scope rather
than the time period of practice.
The health professional would be
required to maintain a full and
unrestricted license in at least
one state. The Federation of State
Medical Boards has proposed a variation
of this model. |
| A national
licensure system could be adopted
on the state or national level.
A license would be issued based
on a universal standard for the
practice of health care in the US.
If administered at the national
level, questions might be raised
about state revenue loss, the legal
authority of states and logistics
about how data would be collected
and processed. If administered at
the state level, these questions
might be alleviated but in either
case, states would have to agree
on a common set of standards and
criteria ranging from qualifications
to discipline. |
| Federal
Licensure |
Under a Federal
licensure system health professionals
would be issued one license, valid
through the US, by the Federal government.
Licensure would be based on Federally
established standards related to
qualifications and discipline and
would preempt state licensure laws.
Federal agencies would administer
the system. However, given the difficulties
associated with central administration
and enforcement, the states might
play a role in implementation. |
Specific examples of the models above
have been proposed by a number of organizations
or states. The more widely known models
include the following:
Specific
Licensure Models
| Name |
Description |
| In 1994,
the ACR adopted a" Standard
for Teleradiology" and developed
a Model Act based on this standard
that is similar to the general endorsement
model described above. |
| American
Medical Association (AMA) |
In 1994,
the AMA adopted a policy that "states
and their medical boards should
require a full and unrestricted
license for all physicians practicing
telemedicine within a state."
|
| The State
of California’s law is a specific
example of a registration model.
In 1997, California passed laws
that permits the Board of Medicine
to create a registration program
for telemedicine providers. |
| College
of American Pathologists (CAP) |
The CAP
model is a variation of the endorsement
model. This proposal requires physicians
to have their licenses endorsed
in each state from which they receive
patient specimens or information.
The CAP suggests that an abbreviated
licensure process would be preferable
to a license for limited practice. |
| The FSMB
supports a special licensure for
telemedicine, a variation on the
general limited licensure model.
In 1995, FSMB proposed an "Act
to Regulate the Practice of Medicine
Across State Lines." Under
this Act, a physician would be required
to obtain a special license issued
by the state medical board. Several
states have adopted variations on
this model including Alabama, Tennessee
and Texas. |
| National
Council of State Boards of Nursing
(NCSBN |
The National
Council’s model is the most
far-reaching of any model and is
based on the general mutual recognition
model. In November 1998, the National
Council adopted language for an
Interstate Nurse Licensure Compact.
This compact creates a unified standard
for nurses’ licenses. Nurses
will be able practice telemedicine
in whichever states adopt the compact.
Licenses will be fully recognized
by the host and home state by mutual
recognition. To date, Arkansas,
Maryland and Utah have passed this
compact into law. |
Two steps back and a jump ahead
In January 1997, the Report to Congress
on Telemedicine identified health
professional licensing and other legal
issues as major barriers to the proliferation
of telemedicine. At that time, about 11
states had already introduced or passed
legislation pertaining to cross-state
licensure of physicians. Of these, only
California and Hawaii’s were conducive
to the practice of telemedicine. The other
states had introduced or passed more restrictive
legislation requiring full licensure for
out-of-state physicians who wished to
practice telemedicine.
Today, there are approximately 20 states
that have adopted restrictive licensure
laws requiring full licensure for physicians,
practicing telemedicine. Alabama, South
Dakota, Tennessee and Texas have adopted
variations on the Federation of State
Medical Board’s "special licensure"
for telemedicine model.
In 1999 to date, eight states have introduced
bills that make licensure requirements
more explicit for out-of-state physicians
and could potentially limit a physician’s
ability to practice telemedicine across
state borders. These include:
- Arizona (SB 1260) requires
full licensure for out-of-state physicians
who make treatment decisions such as
interpreting X-rays.
- Florida (SB 1703) requires
full licensure for out-of-state physicians,
who have primary care over a Florida
resident patient. This includes an out-of-state
physician who interprets radiographs
for a patient or physician in Florida.
- Montana (HB 399) prohibits
practice of telemedicine without a telemedicine
certificate issued by Board of Medical
Examiners.
- New Hampshire (SB 53) requires
licensure of physicians who provide
contractual regular or frequent teleradiology
services in the state.
- North Dakota (HB 1158) requires
full licensure for out-of-state physicians
practicing in North Dakota.
- Oklahoma (HB 1133) requires
full licensure for out-of-state homeopathic
physicians.
- Oregon (SB 600) requires special
telemedicine licensure for out-of-state
physicians practicing on Oregon patients.
- West Virginia (HB 2082) requires
state licensure for the practice of
telemedicine.
In addition, Colorado (SB 19)
has proposed a less restrictive variation
on this language, which allows limited
licensure for physicians associated with
the Shriners Hospitals. This bill modifies
a full licensure law adopted last year.
|
Interstate Nurses Licensure Compact
Under this compact,
the head of the nursing licensing
board will administer the Compact
for his/her state.
Among other things,
this compact states that: "license
to practice registered nursing issued
by a home state to a resident in
that state will be recognized by
each party state as authorizing
a multi-state licensure privilege
to practice as a registered nurse
in such party state." This
compact also applies to licenses
to practice licensed practical/vocational
nursing.
To coordinate these
multi-state licenses, all party
states "shall participate
in a cooperative effort to create
a coordinated data base of all licensed
nurses and licensed practical/ vocational
nurses." Including information
on a nurse’s licensure and
disciplinary history.
|
Despite legislative changes that may
require physicians to take two steps back
in their pursuit of interstate licensing,
the real success story belongs to the
nursing community. In the past two years,
the nursing community has made a significant
jump forward toward interstate licensure.
Two keys to their success have been the
ability to reach broad community consensus
on the need for interstate licensure and
the development of a widely accepted model
based on mutual recognition called the
Interstate Nurse Licensure Compact. The
National Council of State Boards of Nursing,
Inc., hammered out the final draft of
this crucial piece in November 1998. Since
then, the nurses have successfully promoted
the introduction of legislation and the
adoption of state laws that may allow
them to practice across the boarders of
those states that adopt the compact. Since
1998, Arkansas, Maryland and Utah have
passed state laws that allow mutual recognition
for outside state nurse licenses.
Utah enacted the first interstate nurse
compact in March 1998. In 1999, Arkansas
legislators signed mutual recognition
legislation into law as Act 220 in February
and Maryland adopted the Nurse Licensure
Compact in April. Four other states have
introduced mutual recognition legislation:
Nebraska (L 523), Texas (House Bill 1342),
Wisconsin (Assembly Bill 305/ Senate Bill
129), and North Carolina (Senate Bill
194).
Lessons Learned
- Cross-state licensure is a broader
issue than issues relating to telemedicine,
alone. The need for multi-state licensure
to practice telemedicine has focused
a spotlight on the larger and more difficult
question of professional licensure on
a state by state basis v. licensure
on a multi-state, regional or national
basis.
- The need for cross-state licensure
for telemedicine practice may have created
a backlash by state governments, who
may view telemedicine as the first step
towards preempting their jurisdiction
over professional licensure.
- The nurses have been successful in
introducing a multi-state model because
they have been able to create a consensus
around a standard (i.e. the Interstate
Nurse Licensure Compact) and coupled
this standard with mutual recognition,
a proven model of multistate licensure
in other countries.
- The European Union has adopted mutual
recognition as a way for physicians
to cross national boarders to practice
health care.
Next Steps
The Office for the Advancement of Telehealth
plans to work with members of the Western
Governors Association to duplicate the
nurses’ model for other health professions
in a few key states.
State
Licensure Laws
- Alabama Code §§ 34-24-502,503,507
(1997).
Special licensure for out-of-state physicians
- Arkansas Session Law 220 (1999),
Ark. Code Ann. § 17-95-206 (1997).
Nurse Licensure Compact (1999)
Full licensure for out-of-state physicians
(1997)
- California Business and Professional
Code §§ 2060,2290.5,2052.5 (1997).
Registration program for telemedicine
providers created by Board of Medicine
- Colorado Rev. Statute Ann § 12-36-106
(1998).
Full licensure for out-of state physicians
- Connecticut General Statute § 20-9
(1997).
Full licensure for out-of-state physicians
- Georgia Code Ann. § 43-34-31.1
(1998).
Full licensure for out-of-state
physicians
- Hawaii Rev. Statute § 453-2 (1997).
Permits out-of-state physicians to practice
telemedicine
- 225 Illinois Comp. Statute 60-49.5
(West 1998).
Full licensure for telemedicine practitioner
- Indiana Code Ann. § 25-22.5-1-1.1
(Michie1998).
Full licensure to practice telemedicine
- Kansas Administrative Regulations
§ 100-26-1 (1996).
Full licensure for out-of-state physicians
- Maryland
Nurse Licensure Compact
- Mississippi Code Ann. § 73-25-34
(1997).
Full licensure for out-of state physicians
practicing telemedicine
- Nebraska Rev. Statute § 71-1,102
(1998).
Full licensure for out-of-state physicians
- Nevada Rev. Stat. Ann. § 630-020-
(Michie 1997).
Full licensure for out-of-state physicians
practicing telemedicine
- North Carolina General Statute
§ 90-18 (1997).
Full licensure for out-of-state physicians
- Oklahoma Statute title 36, § 6802(1997)
Full licensure for out-of-state physicians
- Tennessee Code Ann. § 63-6-201
(1998), Tenn. Comp.R. & Regulations
Chap 0880-21.16 (1998)
Special purpose license for out of state
physicians
- South Dakota Codified Laws § 36-4-41-
(Michie 1998)
Special license from Medical Board for
limited purpose of telemedicine
- Texas Rev. Civ. Stat. Art. 4495b,
§3.06 (I) (1998), 22 Tex. Admin. Code
§§ 174.1-174.15
Special purpose license for telemedicine
practitioners
- Utah Code Ann. § 58-31b-102 (1998),
Utah Code Ann § 58-1-307 (1998)
Nurse licensure compact, effective
1/1/2000
Full licensure for out-of-state physicians
- Wyoming Rules 024-052-001 § 4(d)
(1998)
Full licensure for out-of-state physicians
Source:
Center for Telemedicine Law, Quarterly
Telemedicine Licensure Update, Vol.1,
No.2, March 1999
1999
State Legislation Pertaining To Licensure
- Arizona S.B 1260
Full licensure for out-of-state
physicians, introduced 1/28/99
- Arkansas S.B. 28 (1999), Arkansas
Session Law 220 (1999)
Adopts Nurse Licensure Compact
- Colorado S.B. 19
Limited license for out-of-state
physicians affiliated with Shriners
Hospital, passed Senate 1/25/99
- Florida S.B 1703
Full licensure for out-of-state
physicians, introduced 3/99
- Montana H.B. 399
Telemedicine certificate for out-of-state
physicians, passed House 2/22/99
- Nebraska L.B. 523
Nurse Licensure Compact, introduced
1/19/99
- New Hampshire S.B. 53
Full licensure for physicians providing
teleradiology services
- North Dakota H.B. 1158
Full licensure for out-of-state
physicians other than by telephone or
fax
- Oklahoma H.B. 1133
Full licensure for out-of-state
homeopathic physicians
- Oregon S.B. 600
Special telemedicine licensure for
out-of-state physicians, introduced
1/11/99
- Texas H.B. 1342
Nurse Licensure Compact, 2/10/99
- West Virginia H.B. 2082
Full licensure for out-of-state
physicians
- Wisconsin Assembly Bill 305/ Senate
Bill 129
Nurse Compact and Mutual recognition
Source: Center for Telemedicine
Law, Quarterly Telemedicine Licensure
Update, Vol.1, No.2, March 1999
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