Recent Relaxation of State-level Challenges to the Expansion of Telemedicine but Barriers Remain

Despite telemedicine’s efficacy, US state legislation is still preventing its wider adoption. To circumnavigate this issue, the Federation of State Medical Boards has passed an optional law last year that would give physicians access to expedited licensure in participating states. Available in 17 states, other states however have created barriers to this service, with laws now in place requiring in-patient visits before telemedicine appointments are permitted.

The use of telemedicine has expanded access to care to patients in rural areas and provided a convenient alternative to battling congested physician offices and emergency department waiting rooms. In repeated studies the delivery of medicine through electronic means has reduced the cost of care, improved efficiencies, and provided a realistic solution to increasing shortages of physicians. Despite promising studies, however, multiple barriers continue to present obstacles to widespread adoption and implementation of telemedicine. One of the greatest barriers to adoption continues to be variances and inconsistencies in state laws governing the practice of medicine.

Recent Studies Highlighting the Benefits of Telemedicine

Kaiser Permanente of Northern California reported half of its patient visits are now delivered virtually, and 80% of dermatology appointments relating to rash are resolved digitally. Veterans Health Administration patients are spending less time in the hospital since the Administration began its telemedicine program. In a rural Alaska community, the days to schedule an appointment fell 31% for ear, nose, and throat providers following the implementation of a telemedicine program. Studies have further found that outcomes for heart failure, mental health, substance abuse, and dermatology patients were no worse for patients receiving care through telemedicine than those that received traditional care. In fact, the use of technology to deliver remote patient monitoring services may even decrease hospital readmissions and improve patient outcomes following a surgical discharge. While these benefits are widely recognized and promise to change the delivery of healthcare for the better, our laws and regulations continue to lag behind advancements in healthcare technology.

Challenges to Expansion

In the United States, physician licensure is state-based and the physician must be licensed in the state where the patient is located. Therefore, a physician practicing through telemedicine must be licensed in each state where patients reside at the time of the consultation. To address this barrier, the Federation of State Medical Boards passed Resolution 13-5: Development of an Interstate Compact to Expedite Medical Licensure and Facilitate Multi-State Practice. Under this compact, licensed physicians would be eligible for expedited licensure in all states participating in the compact. However, the FSMB has no authority to enact federal licensure and states must affirmatively adopt the compact. Seventeen states have the adopted the compact since 2015, including: Alabama, Arizona, Colorado, Idaho, Illinois, Iowa, Kansas, Minnesota, Mississippi, Montana, Nevada, New Hampshire, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming.

Apart from licensure, individual states have also created legal barriers to the practice of telemedicine, such as enacting legislation that requires an in-person visit between the physician and the patient before a telemedicine encounter may occur. A nationwide telehealth company, Teladoc, has been engaged in a legal battle with the Texas Medical Board following the Board’s adoption of the in-person visit requirement via its use of emergency protocols reserved for imminent threats to the public health or safety. In May 2015, the U.S. District Court for the Western District of Texas stayed the implementation of the Board’s rule while Teladoc’s antitrust lawsuit against the Texas Medical Board proceeded to the Fifth Circuit. Telemedicine advocates sought a legislative fix, meeting in June to develop a proposal for state lawmakers to enact telemedicine regulations less restrictive than the Board’s rule. Mid-August, the Arkansas Legislative Council passed a rule limiting this barrier created by requiring a patient-provider relationship be established in-person prior to a telehealth encounter. Patients and providers in Arkansas are now able to established first-time contact through telemedicine, so long as the patient is present at a licensed medical facility that can virtually connect him to an Arkansas-licensed provider. The relaxed regulation; however, does not permit a telehealth encounter with a new patient that occurs outside of a licensed facility, such as in a patient’s home. The Arkansas Board of Medicine will also address its position on store-and-forward telehealth technology when it meets in October.

Progress has also been made in Alaska and Louisiana for out of state telemedicine companies to provide services to residents of those states. Alaska recently passed a law that would permit an out of state company to provide telehealth services within its borders so long as the physicians providing the services are licensed to practice in Alaska and the company registers with the state. Similarly, Louisiana recently enacted legislation superseding a Louisiana Board of Medicine requirement that a company have a physical office within the state to practice medicine and also revised the state’s definition of telemedicine to permit two-way video or audio communications. Alaska, Louisiana, and Texas have historically posed challenges to companies seeking to provide nationwide telemedicine services so relief from some of these states’ restrictions is welcomed news. While progress is being made on these fronts, however, variances in state laws remain, such as supervision requirements, electronic prescribing, and insurance coverage, amongst others. A nationwide telemedicine rollout requires state-by-state assessment of these issues to ensure that the company does not inadvertently violate state restrictions.