Practicing medicine across state lines: telephone health advice

Is it the illegal practice of medicine to offer health advice by phone in tele-consults across state lines?

Every state has different rules, and we must look to state laws governing the practice of medicine.

Some states have explicitly adopted telemedicine statutes, while others have not adopted rules at all.

The issue is relevant both to physicians who may have telephone consults with patients who reside out-of-state (for example, physicians that have a national reputation for CAM approaches including nutritional advice), and non-licensed providers who have a multi-state clientele.

The Federation of State Medical Boards has adopted model guidelines, which can be influential in states particularly if these states have not adopted legislation or regulation. These rules include the following language:

Report of the Ad Hoc Committee on Telemedicine Federation of State Medical Boards of the United States The Federation's governing body accepted the following Report of the Ad Hoc Committee on Telemedicine as policy in April 1996.

A Model Act to Regulate the Practice of Medicine Across State Lines

Executive Summary

Section I. Background

Traditional medical practice is being rapidly transformed by such factors as managed care, the politics of health care reform, as well as technological and other medical advances. Such advances, which include telemedicine, offer opportunities for improved health care delivery.

One aspect of these changes in the health care field is that medical practice may now be conducted over wide geographic areas. This challenges our nation's state-based medical licensure system to facilitate the growth of this evolving mode of patient care while maintaining a high standard of medical care and ensuring public protection.

While telemedicine has been evolving in the United States and abroad for the past 35 years, interest in the field has increased dramatically since 1990 due to the demand for accessible and cost-effective health care.

Additionally, government support for the development and testing of sophisticated telecommunications systems has risen recently. Many federal agencies, including the Department of Commerce, the Health Care Financing Administration, the Office of Rural Health Policy, and the Department of Defense, have begun telemedicine research and demonstration programs to study the use of telemedicine over large distances.

Some of the potential benefits of telemedicine include increased access to health care (especially in underserved areas), expanded utilization of specialty expertise, rapid availability of patient records and reduced cost of patient care. There are, however, as yet unresolved issues surrounding telemedicinemedicine, including the regulation of physicians who practice across state boundaries.
Increased competitiveness in the medical marketplace has resulted in a marked increase in the practice of medicine across state lines. Pathological specimens are being shipped routinely to reference laboratories in distant states for processing and interpretation by pathologists. On occasion, the processed specimens may be distributed to pathologists in multiple states for interpretation. Radiographs are being transmitted electronically for interpretation to radiologists located hundreds of miles away from the point of patient contact. Telemedicine demonstration projects have clearly shown that current technology will allow a physician in a distant state to conduct "face-to-face" consultations with a patient in another state.

The Federation of State Medical Boards of the United States is committed to promoting high standards for physician licensure and practice and is actively involved in policy development, research, and education on behalf of its member boards....

Currently, physicians who practice medicine across state lines without physically being located in the state where the patient encounter occurs are either required to have a full and unrestricted license in that state or are unregulated. It is unacceptable to allow this type of practice to be unregulated, thereby denying the
protection of the state to its citizens. However, physicians who are interested in providing their medical expertise in multiple jurisdictions may be daunted by the prospect of having to obtain full licensure in multiple states.

In response to these concerns (the need to protect the public without being overly burdensome to the profession), the committee developed a model legislative act which calls for an abbreviated but effective licensure process for physicians who will not be practicing physically within a state's jurisdiction, but wish
to provide services to patients located within that jurisdiction. Such legislation would allow states to appropriately provide regulatory control over physicians providing services within their states. Such control is necessary for the protection of the citizens of the state.

Section III. Definition

The practice of medicine across state lines is defined to include any medical act that occurs when the patient is physically located within the state and the physician is located outside the state. Any contact that results in a written or documented medical opinion and that affects the diagnosis or treatment of a patient constitutes the practice of medicine. This is true whether the physician and patient are connected through telecommunications or whether patient data (such as X-rays, EKGs, or laboratory tests) are transported by
courier services or in some other manner. When the practice of medicine occurs as defined by the Medical Practice Act of an individual state in which the patient is located, then such practice should be subject to regulation by the patient's state medical board.
It is important to view the practice of medicine as occurring in the location of the patient in order that the full resources of the state would be available for the protection of that patient. The same standard of care, already in existence in the patient's home state, would be required of all individuals practicing medicine
within any jurisdiction, whether or not they were physically located outside of the state. The agency best able to ensure the maintenance of such standards in the protection of the patient is the medical board in the state of the patient's residence.

Section IV. License Requirement

The proposed model act would require physicians who want to engage in the practice of medicine across state lines by electronic or other means to obtain a special license issued by the state medical board. Such a license would be limited to the practice of medicine across state lines. It would not allow the physician to enter the state for the purpose of engaging in the practice of medicine....

Section VIII. Exemptions

The special purpose license would only be required of physicians who "regularly or frequently" engage in the practice of medicine across state lines. Each state medical board will define what constitutes the regular practice of such medicine. The practice of medicine across state lines will not fall under the provisions of the model, if the practice occurs less than once a month, involves less than ten patients on an annual basis, or comprises less than one percent (1%) of the physician's diagnostic or therapeutic practice.

Importantly, it should be noted that physician-physician consultations, which occur from time to time and are traditional in the practice of medicine, would not be so regulated. It is noted that such consultations occur on an informal basis and are not usually the subject of expected compensation by the physician
rendering such an informal consultation. The practice of medicine across state lines conducted as a result of a contractual relationship, however, would be considered "formal" and, therefore, be regulated by the Board.

The model act also exempts physicians who would engage in the practice of medicine across state lines in the event of an emergency. Again, the definition of an emergency situation would be defined by the Board in each state.....

Definition

"The practice of medicine across state lines" means:

1. the rendering of a written or otherwise documented medical opinion concerning diagnosis or treatment of a patient within this State by a physician located outside this State as a result of
transmission of individual patient data by electronic or other means from within this State to such physician or his or her agent; or

2. the rendering of treatment to a patient within this State by a physician located outside this State as a result of transmission of individual patient data by electronic or other means from within this
State to such physician or his or her agent.....

The non-licensed practitioner should keep in mind the distinction between health education, and the practice of medicine, which the model telemedicine statute defines in the typical sense of the medical licensing statute in terms of "diagnosis" and "treatment."