State Medical Licensure for Telemedicine and Teleradiology

Introduction

Telemedicine is increasingly popular. Dozens of state legislatures have passed telemedicine services reimbursement mandates in the past 3 years, and the trend is continuing. Nighttime coverage provided the entry point for teleradiology start-up companies a decade ago. ^1,2 Today, individual companies are handling millions of cases a year, employing scores of decentralized radiologists offering both general radiology and subspecialty radiology expertise from homes or from central call centers.

New healthcare delivery models are expanding horizons for telemedicine. ^{3 –7} For example, telestroke services staffed by “virtual” teams of vascular neurologists and neuroradiologists are providing early stroke patients, often in rural communities, with unprecedented access to specialists and timely, critical treatment with clot-busting drugs (i.e., intravenous plasminogen activator) during the “golden hour” before irreversible injury takes place. ^{3 –5}

Depending on one's individual perspective, teleradiology can be considered either very helpful or hurtful for the practice of radiology. ^{8 –13} Nevertheless, it is here to stay and may be a model for things to come for other medical subspecialties. ^14,15

At present, the job market for newly trained diagnostic radiologists is considered grim. ^16,17 Radiologists finishing their residencies or fellowships, and facing a difficult job market, may be receptive to the alternative of joining teleradiology company staffs in order to work as teleradiologists from their home offices, especially when traditional job opportunities are limited.

Under Article X of the U.S. Constitution, individual states have the authority to regulate activities that affect the health, safety, and welfare of their citizens, including regulation of the practice of the healing arts. There is no national medical license that would allow a physician not working in a federal facility to practice medicine legally in all the states and U.S. Territories and Possessions. For teleradiologists, who practice across state lines, it is necessary to have a medical license for each state from which they receive patient radiology studies for interpretation. It is not all that unusual for commercial teleradiologists to hold medical licenses for all 50 states.

Obtaining a medical license is time consuming and costly. This burden is somewhat eased for teleradiologists employed by national teleradiology vendors who have the personnel and infrastructure in place to facilitate state medical licensure applications by their employees. These multistate medical license portfolios are owned by the individual doctors and are transportable if the radiologist changes employers.

In the state of Arizona the initial application fee for a medical license is $500, and the subsequent biennial license renewal fee is $500. ¹⁸ These fees vary from state to state, but they are not trivial, and they mount up for the doctor obtaining and then maintaining 50 state licenses. The American Telemedicine Association (ATA), the largest of the telemedicine organizations, estimates it costs hundreds of millions of dollars annually for additional licenses by physicians already licensed in their home state. ¹⁹ Why isn't there a national medical license or at least facilitated reciprocity between states for physician licensing? The answer to this question is a complex mixture of constitutional and historical tradition coupled with distinct differences between the points of view of interested parties, several of which do not necessarily favor widespread, easy accessibility for state medical licensure. ^{18 –22}

State Medical Licensure Overview

Primary medical licensure is state based, with no current recognition for differences among specialties. Allopathic (MD) and osteopathic (DO) physicians usually have separate state licensing boards. To obtain a state medical license, one must graduate from an accredited college of medicine or osteopathy and be awarded either the MD or DO degree, or foreign equivalent. One has to pass a licensing exam, such as the U.S. Medical Licensing Exam, complete at least 2 years of postgraduate medical education (postgraduate year [PGY]-1 and PGY-2), pay applicable fees, and have a clean professional record. The last requirement at first seems like an incidental add-on, but it is most important, and it is often the reason why licensure may be difficult to obtain by some physicians.

States vary in their requirements for postgraduate medical training and for criminal background checks, fingerprinting, and continuing medical education. They vary significantly in their disciplinary procedures and terminology. This variance among states is why some state licensing boards are not willing to have reciprocal licensing agreements with other states or issue easy-to-obtain special telemedicine licenses to physicians licensed in another state.

Several states like California and New Mexico now have expedited licensing and/or reduced fees for physicians wishing to practice telemedicine in the state without actually being a resident of the state or physically present in the state. This is still time consuming, requiring an application for every state and a fee for every application plus annual or biennial license renewal fees.

It is important to understand that the number one purpose of a licensing board is to “protect the public.” “Protecting the public” takes precedence over a physician's right to practice, and it takes precedence over patient convenience for obtaining healthcare. For example, the mission of the Arizona Medical Board (AMB) is “to protect public safety through the judicious licensing, regulation and education of all allopathic physicians.” ¹⁸ The AMB is composed of eight physicians (MD degree), who must be in full-time practice, and four public members, one of whom must be a registered nurse (RN). The members of the AMB are appointed by the Governor and confirmed by the Arizona State Senate. They serve a 5-year term, which can be renewed one time. ¹⁸

Our comments with regard to the AMB and personal observations concerning licensure points of view were derived from the senior author's experience while serving as a Governor-appointed physician member of the AMB from 1997 to 2006. ¹⁸ Although the medical practice acts, customs, and history of each state's licensing board are unique, we feel our generalizations can be applied to most situations. We should note we in no way speak for or in any way necessarily represent the current views and policies of the AMB.

In most states medical practice acts define a “scope of practice.” Common healthcare professions defined under the scope of practice concept include physicians and surgeons, nurses, midwives, emergency medical personnel, pharmacists, social workers, chiropractors, naturopaths, and psychologists. The determination of scope of practice for each category of healthcare provider is highly influenced by the political process in each state.

There are several important points of view with regard to state medical licensure: the individual patient, the physician licensee, the licensing board itself, the state, the “public interest,” and various other interested parties, such as the American Medical Association, the Federation of State Medical Boards (FSMB), the ATA, the Public Citizen's Health Research Group, and Consumers Union.

Groups representing the “public interest” usually believe that optimal protection for patients is obtained at the state level through physician licensing and discipline procedures that assure that duly licensed physicians are qualified to practice. ²⁰ State and local medical societies also often feel physicians are best protected from unnecessary practice restrictions and from unfair allegations of poor medical practice by license regulation and physician discipline being at the state level rather than at the national level. Moreover, a strong argument can be made for retaining impaired physician management at the state level.

There are exceptions to state licensure requirements, including physician-to-physician consultations, which are not between a practitioner and a patient. There are also various exceptions for educational purposes (e.g., the granting of a temporary “teaching license” in which a distinguished foreign physician can practice and teach in an accredited teaching institution for a defined period of time, such as 1–3 years). Federal facilities, such as Veterans Administration medical centers, the military, and others, require physicians to have a valid medical license in any one of the 50 states, not necessarily the state in which the facility is located. ¹⁹ There are also exceptions for natural disasters and other medical emergencies—so-called “Good Samaritan” provisions.

Licensure by Reciprocity

There are 70 licensing boards for physicians (i.e., both MD and DO physicians) in the United States. ²³ Teleradiologists and other physicians with large telemedicine practices have multiple state medical licenses. These physicians typically obtained their initial medical license in the state in which they trained or started practicing medicine. Later, they obtained additional licensure through reciprocity using a shortened application process based on already having the initial state medical license. Reciprocity has been significantly facilitated by the FSMB's Federation Credentials Verification Service, which provides a centralized process for boards to obtain primary source–verified physicians' records for credentialing. Sixty-eight of the 70 state medical boards accept this verification. ²³

One of the biggest barriers to rapid state medical licensure is a pending malpractice suit, settlement of a past malpractice suit, or loss of a past malpractice suit. In addition, any pending complaint against a physician lodged with another state board, no matter how trivial, any past denial or loss of hospital privileges, and any past misdemeanor or felony conviction must be noted on the application process. In most states, these events, no matter when they occurred and no matter how extenuating the circumstances, lead to a medical board investigation to determine if the physician is fit to practice medicine. The large majority of these investigations are settled in the physician's favor and licensure is granted, but that may take months or even longer (T.B.H., personal experience with AMB, 1997–2006). It is quite common for many physicians who have been in practice several years to have had one or more malpractice suits and even formal complaints to a medical board.

Failure to answer all questions truthfully on a licensure application is certainly grounds for denial of licensure, and it may trigger a formal complaint to those states in which the physician is currently licensed. Significant malpractice suit settlements or state board disciplinary actions are reported to the National Practitioner Data Bank and available to state medical boards. A physician should take care to provide careful and truthful responses to all questions regarding one's current and past medical practice and one's malpractice and disciplinary history.

Interstate Medical Licensure Compacts

Although efforts toward national licensure are favored by groups such as the ATA, others feel these efforts are purely financial in nature and overlook potential collateral damage to patient safety. ^21,22 The FSMB favors an interstate medical licensure compact to preempt federal interference in matters that have been traditionally addressed by the states. ^21,22

Administrative interstate compacts allow member states to produce self-regulatory systems which are controlled by the member states. ²² An interstate compact would offer a much simpler pathway for a physician to obtain multiple state licenses using a single application. However, the interstate compact would not change a state's existing medical practice act.

The practice of medicine is presently defined as occurring at the location where the patient is situated at the time of the patient–physician encounter. This would not change with an interstate compact for physician licensure. The physician would be under the jurisdiction of the state medical board where the patient is located. Any disciplinary action would take place in the state where the patient was located at the time of the patient–physician encounter. Any or all of the compact states would have the right to revoke a physician's license to practice medicine under their applicable regulatory processes.

In April 2014, the FSMB House of Delegates adopted a model policy with suggested guidelines for the regulation of telemedicine. ²¹ The Federation is now working on a model interstate compact to be distributed to the states for their consideration. Their aim is to have model legislation ready for state legislative sessions in 2015.

Significant challenges for any legislation pertaining to the practice of telemedicine include (a) determining when a physician–patient relationship has been established, (b) assuring privacy of patient data, and (c) limiting the prescribing and dispensing of certain medications. The importance of these issues varies among specialties, but almost all medical practice act legislation is generic and covers all specialties.

Some states presently require a physical examination and direct patient–physician interaction for there to be a legal physician–patient relationship. Other states allow such a relationship to be established electronically, that is, by face-to-face videoconferencing between the patient and the telephysician. Many states restrict remote prescribing of medication, particularly controlled substances. This is often in response to illegal Internet pharmacies (T.B.H., personal experience with AMB, 1997–2006). ²¹

Despite these challenges, it is expected there will be legislative relief for easier licensing of physicians in multiples states in the next few years. This legislation will probably not necessarily require a personal face-to-face physician–patient interaction and physical examination. It seems likely that prescribing of medications through telemedicine would be allowed but limited in its scope as set by individual licensing boards.

Conclusions

Physician medical licensure is state based for historical and constitutional reasons. It may also provide the best method for guaranteeing patient protection from unqualified, incompetent, impaired, or unprofessional practitioners of medicine. It does increase the cost of doing telemedicine. There is a reasonable likelihood that model legislation for the practice of telemedicine across state boundaries will be passed in the next few years via interstate medical licensing compacts. Interstate licensing compacts leave licensing at the state level. That is where patients can go now for any issues they have with a licensed physician. There should not be a grand national license with a remote process for patient complaints and adjudication. Most physicians would rather be governed and licensed at the state level as well. However, if a physician has a clean record (no recent malpractice claims, no recent patient complaints, licensed in good standing), then it makes sense for there to be a relatively straightforward path for license reciprocity in multiple states. The principle would remain a physician must be licensed in the state in which the patient resides. Any patient complaint and adjudication take place in the state where the patient resides and are decided by the state medical licensing board according to applicable state legislation.