Iowa Attorney regarding interstate regulation of licensure laws.

In response to questions and concerns related to serving clients in other states – I am providing the following information for your review.

DEVELOPMENTS REGARDING LICENSURE AND TELEMEDICINE

1.  At least 26 states have introduced specific licensure laws pertaining to telemedicine
2.  Momentum exists for alternate forms of national licensure
   • Licensure by Endorsement (government boards grant licenses to providers licensed elsewhere; could be cumbersome)
   • Mutual Recognition (authorities mutually agree to legally accept policies and procedures of home state of licensure)
3. Reciprocity (quid pro quo licensure)
4. Consultation Exceptions allow a physician not licensed in a particular state to practice there at the request of or in consultation with a referring physician
5. Health Care Workers Registration (health professionals licensed in one state practices part-time in another state by registering and submitting to jurisdiction and legal authorities of the remote state) 
6. International Telemedicine License (requires a physician to obtain a license to practice medicine electronically, versus on site) 
7.  Model Act of Federation of State Medical Boards:  would grant physicians with an unrestricted license in one or more states authority to obtain a “limited” or “special purpose license” to practice telemedicine in other states.

What can we do as a profession?  
Organized Lobbying through our Professional Organization
- The American Dietetic Association

What have other professions done?
Nursing and The Mutual Recognition Model

The following is an excerpt from the HHSR Telemedicine Licensure Report – Read full report here.

Nursing – NCSBN Interstate Compact
In 1994, the National Council of State Boards of Nursing (the organization comprised of boards of nursing) created a task force which conducted extensive analysis of potential licensure models, ultimately finding the most appropriate model for nursing to be the mutual recognition model. The mutual recognition model of nurse licensure allows a nurse to have one license (in the state of residency) and to practice in other states, as long as that individual acknowledges that he or she is subject to each state’s practice laws and discipline. To date, twenty states have adopted the interstate compact, with other states considering the model.

Mutual recognition is a system in which each state adopts comparable legislation authorizing licensing agencies to enter into an agreement with other states to grant licensees the authority to practice in any state that has adopted the agreed upon legislation. The mutual recognition approach to licensure is typically implemented by adoption of an interstate compact specifying the details of the agreement. Mutual recognition necessitates that states define a common set of requirements governing the agreement. Under mutual recognition implemented by an interstate compact, practice across state lines is allowed, whether physical or electronic, unless the nurse is under discipline or a monitoring agreement that restricts practice across state lines. To implement this nursing licensure model, each state must adopt the interstate compact. The advantages of this model are:

• Authority is granted to practice in any party state;
• Dual jurisdiction for discipline is established;
• Uniform standards are not required;
• It can be phased in as states adopt the interstate compact; and
• A central licensee information system called NURSYS is a component of the infrastructure.
• The interstate compact is an agreement between two or more states entered into for the purpose of addressing a problem that crosses state lines. Modification of the compact is only possible with the unanimous consent of all party states. Once enacted, it takes precedence over prior statutory provisions. The nursing licensure compact specifically addresses four areas:
• Jurisdiction,
• Discipline,
• Information sharing, and
• Administration of the compact.

Although the compact supersedes state provisions that are in direct conflict, all provisions that are not addressed by the compact, or are not in direct conflict, continue to be in full force and operation. From the perspective of the licensee, solid authority for practice is afforded in each party state. Since the nurse does not have to get a new license for temporary practice in a party state, the nurse can begin practice when needed. Elimination of the time and expense in gaining multiple licenses is a frequently cited benefit for licensees.

Other Health Professions
Although not yet addressed in state legislation, other professions are facing unique professional and regulatory issues in dealing with telepractice and other practice across state lines. Professionals in such fields as mental and behavioral health; speech-language-hearing; tele-dentistry; occupational therapy; and dietetics; are engaged in discussions about whether licensure changes should be made to accommodate telepractice.

These groups have engaged in some isolated efforts, generally on an individual state basis, to advocate for telepractice friendly regulation. However, at this point there are not any broad trends we can point to. The groups that have begun to increase their focus on telepractice issues have not as yet made significant inroads when compared to the nurses or even physicians, however, as more professionals become involved, these issues will be increasingly brought before the relevant regulators.

Other Models
Some in the telehealth community have suggested that the time has come to consider federal or national licensure. The federal government has the authority to play a more active role in setting national licensure standards for certain health professionals, particularly in an area such as telehealth where interstate commerce is clearly involved. Congress has previously passed legislation establishing certain national health and safety standards. For example, Congress passed the Mammography Quality Standards Act (MQSA) of 1992, which allows the FDA to establish national standards for mammography facilities and associated staff. There might be some theoretical logic to adopting a federal standard for those health professions where the qualifications to practice have become uniform in virtually all states and where interstate practice is becoming increasingly prevalent.
There might be some theoretical logic to adopting a federal standard, however, traditional notions of federal-state responsibility and vested political interests are likely to weigh against any sudden moves in this direction. Nevertheless, Congress has called on the Administration to prepare a number of reports on state licensure barriers to telehealth. For example, in 2002, when the House Commerce Committee inserted language in the Safety Net Legislation that expressed the Congressional interest in collaboration among regulatory boards to facilitate elimination of barriers to telehealth practice. (Health Care Safety Net Amendments of 2002, Pub. L. No. 107-251, 116 Stat. 1621.). This legislation was ultimately signed by the President. Similar language was included in the Senate version of the prescription drug legislation pending on Capitol Hill. (See S. 1, 108th Cong., 1st Sess. § 450H, 2003). These actions are indicative of Congress becoming increasingly concerned over the restrictive nature of certain state licensure requirements and their negative impact on the delivery of telehealth services.
The term “national license” is often used interchangeably with federal license. The most direct means to achieve a “national license” would be for the federal government to adopt national licensing legislation or a requirement that licensure in one state would allow practice in other state. However, mutual recognition, reciprocity, the special purpose license, and registration models could afford a practitioner with the ability to practice across the country.
A number of concerns are raised in any discussion about federal licensure of health professionals. The primary concern is the strong history of state regulation of health professionals and accountability for public protection. Since monitoring of professional practice (and discipline when necessary) is a unique responsibility of regulatory boards, it is difficult to imagine the administrative mechanism to ensure that unsafe practitioners are removed from practice in a timely manner. Health care providers express anxiety over the complexity of a federal agency (bureaucracy) attempting to issue licenses (and renewals) for several million health professionals.

Bottom line – Know your state licensure law as well as the state licensure law of your client

Penalties for violating licensure laws can be severe (e.g., civil; criminal; disciplinary action, exclusions from Medicare;   suspension or loss of license, loss of malpractice insurance)