This post launches a Digital Symposium on The Future of Telehealth Regulation, edited by Carmel Shachar, Assistant Clinical Professor of Law and Faculty Director of the Health Law and Policy Clinic at the Center for Health Law and Policy Innovation. The symposium continues the conversation from a working group held in June 2023 titled “Achieving Telehealth’s Potential”, out of which a Consensus Statement for two feasible policy paths forward emerged. The working group was funded by a grant from the Commonwealth Fund. The symposium will run in Bill of Health until September 9, 2024.
Part of what makes telehealth an exciting new modality for delivering care is that it is geographically unconstrained. This proved to be an important feature during the pandemic, when connecting patients to physicians across the country during a time of health care shortages was challenging. Telehealth’s divorce from geography remains important, especially for patients who struggle to find appropriate providers within their local communities. Cancer patients may need to find an oncologist who specializes in their particular cancer. College students going back and forth from home to campus may struggle to keep a consistent therapist as they shuttle between two states. Patients with rare diseases may find that they need to access specialists at academic medical centers.
Unfortunately, our physician licensure regulatory regimen does not support connecting patients to the care they need. Instead, it requires that physicians be licensed in the state where their patient is located to provide care. There are limited pathways for physicians to meet the health needs of their patients located in other states. They can pursue additional licenses, which can be a costly and onerous process, or try to find an applicable exception to state licensing requirements, which may not exist or come with compliance challenges. Physicians who may try to provide care regardless of licensure run significant legal risks.
In some ways, it is relatively straightforward to “fix” the physician licensure system to facilitate cross-state telehealth and improve access for patients. While most public health law textbooks will start by noting that regulation of health care has largely been a state endeavor, the federal government has been a significant player in health law and policy for decades. The federal government could create a federal telehealth license, to allow physicians to virtually see patients across the country. Or it could treat medical licenses akin to driver’s licenses. In other words, it could mandate that a physician properly licensed in one state be allowed to treat patients in all other states, provided that the physician complies with local laws.
Unfortunately, political realities do not allow for such solutions. State Boards of Medicine are reluctant to open borders to out-of-state providers. Congress appears to have little appetite to revolutionize the practice of medicine by creating federal licensure. But that does not mean that all avenues to reform are closed.
In June 2023, we gathered representatives from patient advocacy groups, leading cancer care centers, children’s hospitals, and academic medical centers to discuss potential, feasible avenues to reform. The goal was to create policy pathways that will allow patients to use telehealth to reach specialty care services that might be unavailable in their local communities or states. Our group articulated four key principles that must be incorporated into any successful reform: 1) augmenting patient access to care; 2) improving clarity and uniformity across jurisdictions, 3) lowering administrative burden and cost; and 4) expediting the process so physicians can sooner meet patient needs.
Guided by these principles, our group articulated two pathways to greater access to cross-state telehealth for specialty care. First, we identified a need to standardize exceptions to state-based licensure requirements. Limited exceptions to state licensure requirements are broadly supported, including by the Federation of State Medical Boards, the Uniform Law Commission, and the American Medical Association. The current available exceptions are of limited utility because they are unique to each state, making them a compliance nightmare. There is a real need for standardized exceptions, crafted to support follow-up care for established patients, screening for specialty referrals, care incident to existing care plans, and care in the context of clinical trials. This would allow patients to meaningfully engage with specialists in other states and simplify regulatory compliance for physicians, without undermining the state-based licensure system.
Second, we suggested that there is a need for the Interstate Medical Licensure Compact (IMLC) to create a second, telehealth-focused state compact. The IMLC, as it is currently designed, doesn’t suit the needs of a physician looking only to provide telehealth services in other states because it is a vehicle for obtaining full medical licenses. An “Interstate Medical Telemedicine Registration Compact” (IMTRC) with a one-stop application portal to obtain telehealth-only registrations in multiple states would better suit specialty care physicians looking to support patients in other states.
These pathways, along with the four key principles outlined above, are articulated in our consensus statement. We are still accepting sign-ons, so if your organization is potentially interested, please reach out.
Of course, these two pathways are not the only potential solutions. The articles in this digital symposium consider the challenges and solutions to facilitating cross-state telehealth. We hope they will spark reflection and engagement with readers. Because while there are many ways to achieve the goal of facilitating access to key providers for vulnerable patients, the status quo is untenable. We cannot be “stuck in the middle,” unable to truly benefit from new modalities of delivering care while patients struggle to access the services and specialties they need.
