Toolbox Module

Licensure and Scope of Practice

What is licensure?

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 (1). 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 physicians, 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.

What is scope of practice?

Licensure generally establishes a “scope of practice” designed to protect the public (2). “Scope of practice” delineates what a profession does and places limits upon the functions persons within a profession may lawfully perform. It determines the procedures, actions, and processes that are permitted for the licensed individual. The scope of practice is limited to that which the law allows for specific education and experience, and specific demonstrated competency. Each state has laws, licensing bodies, and regulations that describe requirements for education and training, and define scope of practice (3). Health care professions with defined scope of practice laws and regulations include nursing, midwifery, emergency medical services, pharmacists, social workers, physicians and surgeons, and chiropractors.

How do you determine if a physician patient relationship has been created when practicing telemedicine?

Traditionally, the American Medical Association (AMA) defined that a doctor established a medical relationship with his patient during an “in-person” evaluation of the patient where the doctor was physically able to “touch” the patient. Because telemedicine negates this physicality requirement, the traditional understanding of how to establish the relationship needs to be reinterpreted to include advances in modern medicine. Both the AMA and the Federation of State Medical Boards have issued releases interpreting the guidelines in light of the advent of telemedicine. True to the original intent of establishing a doctor/patient relationship, both organizations have crafted new guidelines that are conducive to telemedicine practice without undermining the integrity of the physician’s duty of care.

What are State licensure requirements?

  • 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.
  • If you electronically interact with patients in other states, you must be licensed or register (check State-specific regulations) in each state in which you electronically practice. Practicing medicine without a license in the State in which you are electronically practicing, may incur civil and/or criminal penalties. Under certain circumstances, such as emergencies, an exception may be made to the requirements for state licensure.
  • If you are a physician prescribing medication across state lines, you should be particularly careful. You will need to maintain your license in each of the states where you interact with patients and comply with accepted practice standards. In addition, be aware that many states require physicians to have an in-person encounter and to conduct a physical examination for a physician to prescribe medication electronically. In addition, under the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (Pub. L. no. 110-425), the Drug Enforcement Administration (DEA) plans to promulgate regulations governing the issuance of a special registration to practitioners that prescribe a controlled substance relating to the practice of telemedicine.

What are the exceptions to State licensure requirements?

  • 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

What are physician-to-physician consultations?

Physician-to-physician consultations are not between the practitioner and the patient. If your activities can be construed as consulting, some states will not require an active state license to practice medicine. This applies when you give information or direction to the primary treating physician, not directly to the patient.

What is the licensure exception for educational purposes?

In general, there is an exception if you are an out-of-state physician teaching and learning in a different state. This involves only teaching and demonstrations, and does not include prescribing, treating, operating on, or in any other way, managing the health care of a specific patient. A visiting teacher or professor whose instruction includes prescribing, treating, operating on, or in any way, managing the health care of a specific patient will likely be required to be licensed by the State’s Medical Board.

What is the licensure exception for intern/resident training?

In general, there is an exception to licensure for the rendering of services by interns or resident physicians in a hospital or clinic in which they are training, subject to the conditions and limitations of your state’s laws. Your state medical board may require a resident physician to be licensed if they otherwise engage in the practice of medicine in your state. Interns and residents holding temporary licenses should be employed in a legally established and licensed hospital, medical school or other organization operating an approved graduate medical education program and their practice should be confined to persons who are bona fide patients within the hospital or other organization or who receive treatment and advice in an outpatient department of the hospital or an institution affiliated with the graduate medical education program.

What is the licensure exception regarding Border States?

In a few limited instances, there is an exception for the rendering of services in one state by a physician lawfully practicing medicine in a border state or adjoining state if the physician has any established or regularly used hospital connections in the state or maintains or is provided with, for his or her regular use, an office or other place for rendering the services.

What is the licensure exception for U.S. Military/Veterans Administration/Public Health Service Officers practicing in Federal settings?

If you are a military physician or medical/nursing/other health professional officer serving in the armed forces of the United States, practicing in United States Veterans Administration or the Public Health Service facilities or otherwise performing your duties in the course of your duties in Federal service, you are only required to be licensed in one state, no matter where you practice.

What are the licensure exceptions for medical emergencies (Good Samaritan) or natural disasters?

Nearly all states offer an exemption from licensing requirements for the gratuitous rendering of services in cases of emergency or catastrophe.

Is State authority to regulate health care absolute?

In theory, the states’ power to regulate health care may not be absolute because the Commerce Clause of the Constitution limits states’ ability to erect barriers against interstate trade (4) and the practice of health care has been held to be interstate practice for the purpose of antitrust laws (5). However, states may regulate matters of legitimate local concern even though interstate commerce may be affected (6). Because telemedicine consultations affect the health and well-being of individuals physically located in the state, states arguably have a legitimate local interest in ensuring that out-of-state telemedicine health professionals meet the same standards as professionals licensed within the state. The extent to which a particular telemedicine statute imposes burdens on out-of-state practitioners and interstate trade has to be weighed against the benefits of regulation and the reasons for the regulation. To date, the balance has been in favor of requiring practitioners to obtain a license in each state in which they practice, whether it be in-person or electronically.

Is there an authority for Federal Licensing of health professionals?

The Supremacy Clause of the Constitution preempts state laws that interfere with, or are contrary to, the laws of the Federal Government (7). But there is a strong presumption against preemption of state authority (8). Congress’ intent to preempt state law must be explicitly stated in statutory language or implicitly in the purpose and structure of statute. To date, Congress has been reluctant to exercise this authority with regard to the preemption of state licensure of health professionals.

What about Regional/Multi-State authorities?

The U.S. Constitution recognizes the states’ authority to enter into compacts or agreements with one another, subject to the Consent of Congress (9). An interstate compact is an agreement between two or more states established for the purposes of remedying a particular problem of multi-state concern (10). The National Council of State Boards of Nursing’s Nurse Licensure Compact (NLC) is an example of a multi-state compact designed to ease the barriers to nurses hold multiple licenses across state lines. The mutual recognition model of nurse licensure has been in operation for over 10 years. It allows a nurse to have one license (in his or her state of residency) and to practice in other states (both physical and electronic), subject to each state’s practice law and regulation. Under mutual recognition, a nurse may practice across state lines unless otherwise restricted. Twenty-three states (23 states) have now adopted the compact. All states that currently belong to the NLC also operate the single state licensure model for those nurses who do reside legally in a NLC state or do not qualify for multi-state licensure. In order to achieve mutual recognition, each state must enact legislation or regulation authorizing the NLC. States entering the compact also adopt administrative rules and regulations for implementation of the compact.

Is there a national standard?

Despite the states’ clear authority to license health professionals and the practice of health care, the Federal government does have the authority to establish national standards that regulate certain aspects of medical/health care practice. The Medicare and Medicaid programs, which include conditions of participation for hospitals, nursing homes, and other providers, require specific standards of practice under their respective programs. In addition, Congress has passed laws establishing health and safety standards that affect interstate commerce. For example, the Mammography Quality Standards Act of 1992 (MQSA) allows FDA to establish national standards for mammography facilities. States cannot mandate lower standards but can mandate higher standards than those required under the MQSA.

What are some alternative models to reduce the licensure barriers to telehealth?

There are several models for cross state licensure agreements wherein one state recognizes the license of another state. The most prominent models include:

  • Licensure by endorsement: Licensure endorsement is currently used by most state boards to grant licenses to health professionals licensed in other states that have equivalent standards. For example, many health professionals must apply for a license by endorsement from each state in which they seek to practice (11). States may require additional qualifications or documentation before endorsing a license issued by another state. Most recently, the state of Idaho has implemented licensure by endorsement for physicians that hold valid, current licenses that have been granted after examination in a state with standards considered equivalent to those in Idaho (Florida does not qualify) or for physicians who are Diplomates of the National Board of Medical Examiners, or USMLE, or are Diplomates of the National Board of Examiners for Osteopathic Physicians and Surgeons.
  • 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 (12). 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 deemed essential to the health care system. The National Council of State Boards of Nursing’s Nurse Licensure Compact is both a licensure law and an agreement between the participating states. 23 states have now adopted the compact. Participating states agree to work together on interstate enforcement actions. In return, they accept each of the other participating states initial licensure determinations. It is similar in many respects to the Interstate Driver’s License Compact.
  • Reciprocity: Reciprocity agreements are between two or more states in which each state gives the subjects of the other certain privileges, on the condition that its own subjects shall enjoy similar privileges at the hands of the latter state. 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 (13).
  • Special purpose or limited licenses: These licenses allow health professionals to have the option of obtaining a limited license for the delivery of specific health services under particular circumstances in addition to holding a full license in the state where they primarily practice. To date, approximately 10 states have adopted some version of a special purpose license for telemedicine practice.

References

(1) Telemedicine Report to Congress, U.S. Department of Commerce National Telecommunications and Information Administration in consultation with the U.S. Department of Health and Human Services, 29-30 (1997).

(2) Telemedicine: Legal, ethical, and liability considerations, Journal of the American Dietetic Association, Ruthe C. Ashley (2002).

(3) McGraw-Hill Concise Dictionary of Modern Medicine (2002).

(4) De Canas v. Bica, 424 U.S. 351, 357 (1976).

(5) See, e.g., Arizona v. Maricopa County Medical Soc’y., 457 U.S. 332 (1982).

(6) Maine v. Taylor, 477 U.S. 131.

(7) U.S. Constitution Art. VI, cl.2.

(8) Zimmerman and Wendell, The Law and Use of Interstate Compacts, 1976.

(9) U.S. Const. Art. I, Sec. 10, cl. 3, provides in pertinent part, “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State . . .”

(10) Black’s Law Dictionary.

(11) Telemedicine Report to Congress, U.S. Department of Commerce National Telecommunications and Information Administration in consultation with the U.S. Department of Health and Human Services, 37-39 (1997).

(12) Ibid.

(13) Ibid.

Commands