Licensure authority defines who has the legal responsibility to grant a health professional the permission to practice their profession. Historically, 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 including the practice of healing arts within their borders. Laws governing individual health care providers are enacted through state legislative action, with authority to implement the practice acts delegated to the respective state licensing board.
The purpose of licensing health care professionals is to protect the public from incompetent or impaired practitioners. Practicing medicine requires a certificate of licensure from the state in which the practitioner is working and may require licensure in the state where the patient is located. Similar laws cover other practitioners such as nurses, pharmacists, therapists and other professionals dispensing health care services. A practitioner must be licensed, or follow state reciprocity rules, prior to working in a state. In light of telemedicine, licensure requirements can be complicated. Before practicing medicine, the practitioner needs to ensure that his/her activity is legally sanctioned and protected.
State Licensure Requirements
Telehealth makes it possible for providers to connect with patients in other states. When this happens, the originating site (the location of the patient) is considered the “place of service”, and therefore the distant site provider must adhere to the licensing rules and regulations of the state in which the patient is located. Each state has their own laws and regulations around licensing which are typically enforced by the state medical board. Most state medical boards enforce strict licensure rules, requiring providers to have a full medical license in the state the patient is physically located in. Therefore, in the case of a telehealth consultation between a provider in California and a patient in Hawaii, for example, the provider must obtain a Hawaii medical license before performing the telemedicine consultation. Under certain circumstances, such as emergencies, an exception may be made to the requirements for state licensure. If all of your patient interactions are within the State in which you are licensed, you maintain your licensure in good standing, and you comply with accepted standards, you are unlikely to have any significant licensure issues. Additional restrictions may apply if you are a physician prescribing medication across state lines. See the section on online prescribing for additional information.
Some state medical boards will issue special licenses or certificates related in some way to telehealth. Other states have laws that don’t specifically address telehealth/telemedicine licensing but make allowances for contiguous states or for certain situations where a temporary license might be issued, provided the specific state’s licensing conditions are met. To review states’ licensure policies visit the Center for Connected Health Policy’s policy map tracking tool. However, most laws state that the physician is not allowed to open an office in the State without a license. The most common licensure exceptions are the following:
- Physician-to-physician consultations (not between practitioner and patient)
- Educational purposes
- Residential training
- Border states
- U.S. Military
- Public health services
- Medical emergencies (Good Samaritan) or natural disasters
Potential Solutions to the Cross-State Licensure Barrier
State licensing requirements have been identified as a key policy barrier in telehealth. It can be solved at the federal level, and several pieces of federal legislation have been introduced to address this. Some legislation attempts to re-define the “place of service” from the originating site (site of the patient) to the distant site (site of provider delivering care). This would resolve the licensing barrier because a provider would then only need to be licensed in the state in which they are physically located in, as opposed to the state of the patient. However, none of these bills have successfully made it through the legislative process and into law.
The cross state licensure issue could also be resolved by forming something similar to the Nurse Licensure Compact (NLC), which allows nurses to have one multistate license, with the ability to practice in both their home state and other states which have signed on to the compact. The Federation of State Medical Boards (FSMB) drafted model language for states to create an Interstate Medical Licensure Compact, which has been adopted by one third of states. Unlike the NLC, this particular Compact creates an expedited medical licensure process with the goal of allowing physicians to become licensed in multiple states more easily, while protecting patient safety. Now that the minimum of seven states that were required to adopt the Compact language has been met, it is expected that the Interstate Commission will soon form, and begin to administer the Compact. See CCHP’s policy brief on the Compact for a detailed analysis.
Federal Trade Commission
The Federal Trade Commission has also shown interest in examining whether the restrictions on telehealth providers by state licensing boards are anti-competitive. See the section on the Federal Trade Commission for more information.