by Josh King, General Counsel, RealSelf
With the rise of virtual consultations, we are seeing an increase in questions from doctors about the legality of doing video consultations with out-of-state patients. It’s an interesting and important question that I’d like to explore in more depth.
What’s the Issue?
As every doctor knows, the practice of medicine in the United States is regulated on a state-by-state basis. Outside of some exceptional cases, doctors can only practice medicine in the states in which they are licensed.
Sure, there’s a move afoot to try to ease the burden of multi-state licensing. Even before the COVID-19 pandemic, there was the Interstate Medical Licensure Compact, which offers an expedited pathway to licensure for physicians looking to practice in multiple states. Unfortunately, it doesn’t apply in many states, including—notably for aesthetic medicine—California, Florida, New York, and Texas.
And things are loosened up, at least temporarily, due to the pandemic. The Department of Health and Human Services called on states to waive licensing fees, allow free temporary licenses, and other measures to expand healthcare access. Numerous states have done so, dropping barriers to out-of-state practitioners, providing expedited processes for out-of-state doctors to get licensed, and waiving telehealth restrictions.
So, as with the current waiver of HIPAA enforcement, there’s currently a window where there’s less to worry about when it comes to doing virtual consults across state lines. But is there a way to get more permanently confident about the practice?
I believe there is.
What Does State-by-State Licensing Matter?
Different rules can exist in a crisis, which is why we are seeing so much regulatory relaxation right now. At times like these, it’s far more important to save lives and treat the sick than worry about the niceties of regulation. But that’s not going to last forever, so let’s start by understanding why we have state-by-state licensing in the first place.
Contrary to what many believe, the purpose of state-by-state licensing isn’t to protect the practices of doctors from out-of-state competition. Rather, it’s to protect the public by ensuring that physicians have the necessary training and are overseen for competence. Yes, this is anachronistic in 2020, given the fact that medical standards are set nationally. But oversight and discipline of doctors still exists at the state level. So the important thing to keep in mind is whether there is something about an out-of-state telehealth practice that potentially harms patients, or frustrates the state’s interest in supervising the practice of medicine.
Different Flavors of Telehealth
To analyze this question properly, let’s look at several different examples for the delivery of telehealth services. If we’re going to focus on what really matters here — again, the protection of patients and ensuring medical licensing authorities can supervise the practice of medicine in their jurisdictions — we need to recognize that different telehealth practices can drive very different levels of concern.
Example 1: A California resident has a virtual visit — including diagnosis and prescribing of medication — with a psychiatrist in Florida.
Example 2: A California resident with suspicious moles has a virtual consult with a Florida dermatologist, who visits the patient while traveling to California and removes the moles.
Example 3: A Florida resident receives a breast enhancement procedure from a Florida plastic surgeon. While visiting California, she experiences complications. She has a video consult with her doctor in Florida, who provides advice on treating the complications and prescribes medication.
Example 4: A California resident interested in a breast enhancement procedure has a video consultation with a Florida plastic surgeon. She then travels to Florida, where she undergoes the treatment.
It should be uncontroversial that examples 1 & 2 constitute the unlicensed practice of medicine. California has a significant interest in protecting its citizens from incompetent medical care, whether that care is delivered virtually (example 1) or in-person (example 2). That interest is frustrated when the doctor providing the care in-state is not subject to California’s oversight. The patient may not even know where to go to seek information about the doctor, or where to file a disciplinary complaint.
However, in examples 3 & 4, the consumer protection interest is fundamentally different.
In example 3, the patient and the doctor are both Floridians, so there’s no confusion or lack of clarity about licensing and oversight. The patient just happens to be in another state when she receives follow-up telehealth services from her doctor. California has no patient protection interest in that occurrence; to think that it does would be to elevate a rigid, mechanistic view of the rules over the interest of patients (and, indeed, the doctor’s ethical obligations to the patient).
Example 4 is similar in that the patient is not confused or unclear about where the doctor is licensed. She is choosing to go to an out-of-state doctor, and the medical treatment itself will happen in Florida, where the doctor is licensed. And as for the initial video consultation, that is both part of the continuum of care of a medical treatment taking place in Florida and not an event that is properly subject to California’s medical licensing rules in the first place.
“The Practice of Medicine”
OK, I know that last part sounds weird, so I’ll unpack it a bit more.
It starts with understanding that there is a difference between how we think about “the practice of medicine” for professional purposes and how we think about it for the purposes of licensing. For the professional, an initial consultation is part of the continuum of care, carrying with it all of the professional obligations that go along with any patient interaction. A doctor would consider it to be part of the “practice of medicine” with respect to that patient.
However, licensing must deal with an inherently narrower definition. That’s because the power to license is the power to exclude — it’s a power by which the state prevents the unlicensed from engaging in certain activities. That power cannot be exercised arbitrarily or expansively, and when it comes to speech, the First Amendment particularly limits the state’s ability to regulate.
Now, without going too much further down this rabbit hole, I’ll caution that this doesn’t mean the state can’t restrict any speech. It can do so when such speech is fundamental to the medical treatment being offered (e.g., mental health services) or incidental to regulated conduct (e.g., requirements to obtain informed consent before delivering medical treatment). But when it comes to purely consultative or evaluative speech, such as offering advice about the feasibility of undergoing breast implant surgery? Restrictions on that don’t fly unless there’s a significant patient protection concern. And in the case of a consumer who is knowingly consulting with an out-of-state doctor in advance of an out-of-state medical treatment, there simply isn’t any such concern.
“What’s in the best interests of the patient?”
It’s a simple heuristic when thinking about restrictions on the practice of medicine, but it will almost always deliver the right answer. Ultimately, these restrictions — yes, even including the archaic device of state-by-state licensing — are intended to protect patients. Virtual consultations offer a way to expand convenience, choice, and access to care. Do them in ways that always put patients first and you should have little to worry about.
The information provided in this article does not, and is not intended to, constitute legal advice.
About the author
Josh King is the General Counsel for RealSelf, the web’s leading resource for consumers researching aesthetic procedures. Prior to joining RealSelf, he spent over a decade as Chief Legal Officer at Avvo, helping that consumer online legal resource grow from tiny startup to industry leader. Josh regularly speaks and writes on issues relating to digital media, communications, and professional ethics. He’s also been known to go on about bike commuting, politics, bourbon, and traveling. Read more of Josh’s thoughts on social media and the regulation of professional speech at his aptly titled blog, “Socially Awkward”.
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