Telemedicine Demands the Abandonment of the Bifurcated State Medical Licensure System

Telemedicine is the use of technology to undertake an activity constituting the practice of medicine when the healthcare practitioner and the patient are not in the same physical location, utilizing telecommunication devices. Telemedicine faces a host of unique issues, including the issue of state licensure acting as a barrier to the practice of telemedicine.

Under Article X of the U.S. Constitution, states have the authority to regulate activities that affect the health, safety, and welfare of their citizens. Regulation of the practice of medicine, and the people who practice medicine, falls directly within the purview of this power. States exercise this power through legislative action, which gives the state medical licensing boards the authority to implement and enforce the states’ medical practice acts. The authority to regulate and license those who practice medicine originated with and remains with the states because the states have a direct interest in protecting their citizens by ensuring patient safety. The states accomplish this interest by closely monitoring who can practice medicine in their individual state.

Yet this system comes into direct conflict with the practice of telemedicine for several reasons. First, the bifurcated system makes it difficult for physicians to obtain and maintain licensure in multiple states by imposing excessive administrative burdens. Second, the system impedes the practice of telemedicine by making it difficult for physicians to care for patients in other states. This causes a reduction in access to health care for several populations, which in turn causes poor health outcomes. Lastly, the bifurcated system causes increased costs for both providers and patients. Providers who wish to provide care in multiple states are forced to pay several states’ licensure fees. Patients see both direct and indirect costs. Directly, patients are forced to pay transportation costs to get to their provider for care, as telehealth was not an option, and indirectly, patients are forced to pay the cost of seeing a different, perhaps less experienced, knowledgeable, or skilled provider, or no provider at all.

Two possible solutions have come to the forefront of overcoming telehealth’s barrier of state licensure. The first proposal is federal legislation. In one such attempt, a bill proposed to redefine “place of service” from the originating site (the site of the patient) to the distant site (the site of the provider delivering care). However, no federal legislation attempted has been passed and signed into law.

A second, and more promising approach, is the Interstate Medical Licensure Compact (“Compact”). The Compact is a contract among several states to offer a “new, voluntary expedited pathway to licensure for qualified physicians who wish to practice in multiple states, increasing access to health care for patients in underserved or rural areas and allowing them to more easily connect with medical experts using telemedicine technologies.” The Compact allows for voluntary participation by physicians and state medical boards. It does not change a state’s existing medical practice act, and regulatory authority remains with state medical boards, but the Compact creates an additional, expedited pathway to licensure. Proponents of the Compact argue that the Compact will continue, and even enhance, states’ ability to protect their citizens by regulating the practice of medicine within their borders as states who agree to the Compact would share data on ongoing investigations of physicians.

As of January 2017, eighteen states had enacted the Interstate Medical Licensure Compact, and seven additional states had active legislation regarding the Compact. The administrative process for expedited licensure is still being developed and established, so expedited licensure is not yet available. However, it has been determined that the Interstate Medical Licensure Compact Commission will provide oversight and administration of the Compact, which will consist of two representatives from each member state. Illinois is one of the eighteen states which has enacted the Interstate Medical Licensure Compact.

Telemedicine is a promising field through which health care costs may be decreased and healthcare access may be increased for millions of Americans. Yet state licensure laws currently impede the practice of telemedicine. There are a couple of solutions that could be pursued, still the most promising seems to be the Interstate Medical Licensure Compact. The Compact could lead to provider ability to practice across state lines, and the unencumbered practice of telemedicine, which would decrease the cost of care, increase patient access to care, and ultimately improve patient health outcomes.

Lacey Rogers is a third-year student at DePaul University College of Law. She will graduate in May of 2017 with her J.D. and Health Law Certificate.