cross-state licensure for providers
TRANSCRIPT
Cross-State Licensure for Providers
May 26, 2016
Teresa D. Locke
This presentation is similar to any other legal education materials designed to provide general information on pertinent legal topics. The statements made as part of the presentation are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the speaker. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of law to your activities, you should seek the advice of your legal counsel.
Overview
• Interstate Medical Licensure Compact– what is it?– how does it work?– where is it applicable?– other relevant issues
• Issues related to cross-state licensure• Scope of practice issues• Telehealth/Telemedicine issues when
practicing over state lines• Additional resources
Helpful Written Materials
• .ppt slides• Federation of State Medical Boards model
legislation (https://www.fsmb.org/Media/Default/PDF/Advocacy/ Interstate%20Medical%20Licensure%20Compact%)
• Telemedicine Policies – Board by Board Overview– 50 state survey of telemedicine laws and
regulations– https://www.fsmb.org/Media/Default/PDF/FSMB/
Advocacy/GRPOL_Telemedicine_Licensure.pdf• Center for Connected Health Policy
(http://cchpca.org/sites/default/files/resources/50%20State%20FINAL%20April%202016.pdf)
Interstate Medical Licensure Compact
Interstate Medical Licensure Compact What is it?
• Offers new, voluntary expedited pathway to licensure for qualified physicians who wish to practice in multiple states.– Medical licensing is burdensome, redundant and
costly.– Providers must complete complex licensing
applications and submit credentialing documentation in each state.
– Getting a license can take several months to a year.• States participating in the Compact agree to
share information with each other and work together in new ways to significantly streamline the licensing process.
Interstate Medical Licensure Compact What is it?
• The Compact aims to increase access to health care for individuals in underserved or rural areas and allow patients to more easily consult medical experts through the use of telemedicine technologies.
• Physicians providing telehealth services in another state, in general, must be licensed in the state they are in as well as the state the patient is in.
• The goal of the Compact is to alleviate the burden for physicians without compromising patient safety.
• Supported by the AMA, AOA, American Academy of Pediatrics and American College of Physicians.
Interstate Medical Licensure Compact What is it?
• Compact is formal agreement between states that has characteristics of both statutory law and contractual agreement.
• In order for a state to join the Interstate Medical Licensure Compact, state legislatures must enact the Compact into state law.
• The Compact does not otherwise change a state’s existing Medical Practice Act.
• A physician applying for expedited licensure through the Compact will be granted the same full and unrestricted license to practice medicine as he/she would receive if applying through the current state licensure processes.
• An eligible physician will designate a member state as the state of principal licensure and select the other member states in which a medical license is desired. The state of principal licensure will verify the physician’s eligibility and provide credential information to the Interstate Commission. The Interstate Commission will then collect applicable fees and transmit the physician’s information and licensure fees to the additional states. Upon receipt in the additional states, the physician will be granted a license.
Interstate Medical Licensure Compact How does it work?
Interstate Medical Licensure Compact What states are participating?
Interstate Medical Licensure Compact What states are participating?• Since it was unveiled in 2013,
sixteen states have enacted the Compact:–Alabama, Arizona, Idaho, Illinois,
Iowa, Kansas, Minnesota, Mississippi, Montana, Nevada, New Hampshire, South Dakota, West Virginia, Wisconsin and Wyoming.–Colorado is awaiting the signature
of Gov. Hickenlooper.
To be eligible for expedited licensure, physicians must:• Possess a full and unrestricted license to practice
medicine in a Compact state• Possess specialty certification or be in possession
of a time unlimited specialty certificate • Have no discipline on any state medical license• Have no discipline related to controlled
substances• Not be under investigation by any licensing or law
enforcement agency• Have passed the USMLE or COMLEX (or
equivalent) within 3 attempts• Have successfully completed a graduate medical
education (GME) program
Interstate Medical Licensure Compact Who can participate?
Interstate Medical Licensure Compact Who can participate?
• Surveys estimate that nearly 80% of the physician population licensed in the United States could be eligible for expedited licensure via the Compact process.
• The Compact will substantially reduce the time it takes to receive multiple licenses. As soon as eligibility is verified and fees are transferred, additionally selected states will issue a full and unrestricted license to the physician.
• Physicians who are ineligible for the expedited licensure process facilitated by the Compact will still be able to seek additional licenses in those states where they desire to practice, using the traditional state-by-state licensure processes.
Interstate Medical Licensure Compact How does it work?
• An eligible physician will designate a member state as the state of principal licensure and select the other member states in which a medical license is desired.
• The state of principal licensure will verify the physician’s eligibility and provide credential information to the Interstate Commission.
• The Interstate Commission will then collect applicable fees and transmit the physician’s information and licensure fees to the additional states. Upon receipt in the additional states, the physician will be granted a license.
Interstate Medical Licensure Compact State of Principal LicensureThe physician must possess a full and
unrestricted license to practice medicine in the state of principal licensure, and the state must be:(1) the state of primary residence for the physician, or (2) the state where at least 25% of the
practice of medicine occurs, or (3) the location of the physician’s employer, or (4) if no state qualifies, the state
designated as state of residence for purpose of federal income tax.
Interstate Medical Licensure Compact Disciplinary Actions • Any disciplinary action on a license issued
by a member state may be subject to discipline by other member states. Other member states that have issued a license to the physician may impose the same or lesser sanctions on that license or pursue separate disciplinary action based on the respective Medical Practice Act.
Interstate Medical Licensure Compact The Commission
• The Interstate Medical Licensure Compact Commission will provide oversight and administration of the Compact, including creating and enforcing rules and promoting interstate cooperation, ultimately ensuring that the Compact continues to facilitate safe and expedient access to care and physician licensure. Each state participating in the Compact will have two representatives to the commission.
• Commission has met three times so far – quarterly.
• Compact is still a ways from being implemented.
Interstate Medical Licensure Compact The Commission
• The Commission is in the process of establishing an administrative process for expedited licensure.
• Expedited licensing is not yet available but hopefully will be soon.
• Next meeting will be June 24, 2016 in Salt Lake City.
• To make a comment to the Commission, contact Ian Marquand, IMLCC Chairperson, at [email protected].
• The Commission will be putting out a FAQ about the Commission.
Interstate Medical Licensure Compact The Commission
• The Commission will be seeking a private revenue ruling from the IRS regarding the ability to receive 501(c)(3) status.
• The Commission received a $25,000 grant from the FSMB Foundation to be used for a pilot/dry run project on interstate licensing.
• Montana, Iowa, Alabama and South Dakota volunteered to work with the pilot project/dry run when the technology piece is ready.
• The Commission’s Executive Committee will put forth a timeline by June 1, 2016 for Commission approval, for a test on the concept for implementation of compact licensing.
Other Healthcare Provider Compacts • Nurse Licensure Compact for registered
nurses, licensed practical nurses and licensed vocational nurses.– Adopted by 25 states
Other Healthcare Provider Compacts • Nurse Licensure Compact
– Grants reciprocity to practice in participating states without getting a license.
– Nurses take the same licensing exam in every state and states’ licensing requirements are mostly uniform.
• Federation of State Boards of Physical Therapy decided in 2015 to pursue a model similar to nurses and plans to start introducing legislation in states in 2016.
• American Occupational Therapy Association and the Association of Social Work Boards are considering compacts.
Issues Related to Cross-State Licensure
Cross-State Licensure – Practice of Medicine• States regulate the “practice medicine,”
which is often defined as something like the following:– To investigate, diagnose, treat or prescribe for
any human disease, ailment, injury, or other condition by any means or instrumentality.
– To apply principles or techniques of medical science in the prevention of any such conditions.
– To offer, undertake, attempt or hold oneself out as able to do any of the foregoing.
• Unauthorized practice of medicine = felony– Criminal fines (e.g., $10,000)– Prison (e.g., 5 years)– Adverse action against license.
Cross-State Licensure – Practice of Medicine• “Practice of medicine” is usually interpreted
as occurring where the patient is located.• State in which patient is located will usually
apply its own medical practices law. – State wants to protect its own citizens.
• Practitioner must generally be authorized to practice in state where patient is located by either:– License, or– Exception to license (such as “good Samaritan”
laws, education, physician-to-physician consultations).
– Practitioners in military, VA, Public Health Service may practice within their organization across states.
Cross-State Licensure – Corporate Practice of Medicine• Corporate practice of medicine concerns– Concern that non-physicians may influence
physician conduct.– Medical practices acts interpreted to
prohibit corporations from “practicing medicine” through employed physicians.
– Statutes prohibit physicians from practicing medicine as an employee of corporation
• Penalties may include fines, adverse licensure actions, or injunctions to stop practice.
Cross-State Licensure – Corporate Practice of Medicine• CPOM is usually subject to exceptions.– Statutes expressly allow or contemplate
that certain entities may employ physicians (e.g., hospitals, managed care organizations, other licensed entities).
– Professional corporations, professional limited liability companies, etc.
• CPOM usually does not apply to independent contractors.
• Physicians and corporations employing physicians must beware CPOM when practicing across state boundaries.
• Hospital conditions of participation (“COPs”)– “In all cases, healthcare professional must be
legally authorized to practice in the state where the hospital is located.”
(Interpretive Guidelines for 42 CFR 482.11, .12 and .22)
• Most state Medicaid laws require that practitioner is licensed within the state as condition for reimbursement.
• Liability insurance may require proper license for coverage.
• Liability insurance policies may exclude the practice of medicine in another state.
* Check your malpractice insurance coverage.
Cross-State Licensure - Miscellaneous
Cross-State Licensure – Unfamiliar Laws
• If crossing state boundaries, assume that you will be subject to laws of other state.– Licensure requirements– Professional standards and standard of care– Informed consent– Statute of limitations– Caps on damages– Pre-litigation screening– Immunities and defenses– Reimbursement rules– Confidentiality requirements
Cross-State Licensure – Unfamiliar Procedures
• Different community standard of care may apply.
• May be sued in other state’s court or federal court under different procedures and standards.– Pre-litigation screening panel– Notice of tort claims– Pleading punitive damages– Physician-patient privilege– Peer review privilege– Evidentiary rules re experts or others
Scope of Practice Issues
• Licensure establishes a “scope of practice” designed to protect the public.
• “Scope of practice” delineates what a profession does and places limits upon the functions persons within a profession may lawfully perform.
• The scope of practice is limited to that which the law allows for specific education and experience, and specific demonstrated competency.
• Each state has laws, licensing bodies, and regulations that describe requirements for education and training, and define scope of practice.
Scope of Practice Issues
Scope of Practice Issues (cont’d)
• Demographic shifts, such as the aging rural physician workforce and the growth in the rural elderly and near-elderly population will increase demand for primary care services.
• One approach to meeting this increased demand that is under consideration in many state legislatures is a redefinition, and often expansion, of the scope and standards of practice for non-physician practitioners.
• In the 2012 session, NCSL tracked 827 bills to redefine providers’ scopes of practice in 29 states, 154 of which were enacted in 24 states and the District of Columbia.
Scope of Practice – Licensure Exceptions
• If you electronically interact with patients in other states, you must be licensed or register (depending on the state) in each state in which you electronically practice.
• Possible exceptions to state licensure requirements:– physician-to-physician consultations– educational purposes– residential training– border states– U.S. Military– Public health services– Good Samaritans
Scope of Practice - Prescribing
• If you are a physician prescribing medication across state lines, you should be particularly careful. Be aware that many states require physicians to have an in-person encounter and to conduct a physical examination for a physician to prescribe medication electronically.
• Concerns have arisen over a variety of issues including whether an appropriate patient-provider relationship has been established, lack of an adequate physical examination of the patient, accuracy of the patient’s history given the self-reporting of the patient over a telehealth connection, and not meeting state medical board licensing requirements.
Scope of Practice - Prescribing
• Online prescribing policies vary across the states.
• Many states or medical boards require an in-person physical exam before allowing the practitioner to prescribe or render treatment.–Medical practices act– Statement of medical boards
See http://www.fsmb.org/pdf/InternetPrescribing-law&policylanguage.pdf.
• Check relevant laws concerning in-person contact.
Telehealth/Telemedicine Issues When Practicing Over State Lines
What is Telemedicine/Telehealth
• “Telemedicine” = provision of clinical services to patients by physicians and practitioners from a distance via electronic communications. – Simultaneous or “real time” (e.g., teleICU)– Non-simultaneous, “store-and-forward” (e.g.,
teleradiology)Originating Site:Where the patient is
located
Telemedicine
Distant Site:Where the remote
practitioner is located
Telehealth – Issues for Discussion
• Telemedicine often involves laws from other states because it crosses state boundaries.
• State laws and regulations differ.• Important issues that vary from state to state:– Licensure– Corporate Practice of Medicine– Credentialing and Privileging– Reimbursement/Parity– Liability Issues
• Check applicable laws and regulations of relevant states when it is time to apply what we discuss.
Telehealth – State Laws Resource http://cchpca.org/sites/default/files/resources/
50%20State%20FINAL%20April%202016.pdf
Telehealth - Licensure• 48 states boards, plus the medical boards of
District of Columbia, Puerto Rico, and the Virgin Islands, require that physicians engaging in telemedicine are licensed in the state in which the patient is located.
• 14 state boards issue a special purpose license, telemedicine license or certificate, or license to practice medicine across state lines to allow for the practice of telemedicine.
• https://www.fsmb.org/Media/Default/PDF/FSMB/Advocacy/GRPOL_Telemedicine_Licensure.pdf– provides description and citation to state laws
Telehealth – Licensurehttps://www.healthit.gov/providers-professionals/faqs/are-there-state-licensing-issues-related-telehealth
Licensure: Who Cares?• Telemedicine provider– Subject to criminal, civil or administrative
sanctions if not properly licensed, i.e., practicing without license.
– No liability insurance.– No reimbursement for services provided.
• Originating site– No liability insurance for remote practitioner.– No reimbursement for services provided.– Facility licensing problems.– COP problems for hospitals.– Maybe subject to negligent credentialing
liability if bad outcome.
Telehealth – Other Licensure Issues
Hospital conditions of participation (“COPs”).• “In all cases, healthcare professional must
be legally authorized to practice in the state where the hospital is located.”
• “When telemedicine is used and the practitioner and patient are located in different states, the practitioner providing the patient care service must be licensed and/or meet the other applicable standards that are required by the state or local laws in both the state where the practitioner is located and the state where the patient is located.”
(Interpretive Guidelines for 42 CFR 482.11, .12 and .22)
• Most state Medicaid laws require that practitioner is licensed within the state as condition for reimbursement.
• “Medicaid guidelines require all providers to practice within the scope of their State Practice Act. Some states have enacted legislation that requires providers using telemedicine technology across state lines to have a valid state license in the state where the patient is located. Any such requirements or restrictions placed by the state are binding under current Medicaid rules.” (http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Delivery-Systems/Telemedicine.html)
Telehealth – Other Licensure Issues
Telehealth - Licensure
In short…• Remote
practitioner and originating site should ensure that remote practitioner is licensed in or otherwise authorized to provide the telemedicine services in the originating site’s state.
Telehealth – Corporate Practice of Medicine
• I won’t repeat everything we’ve already discussed, but see slides 24-25 above.
• In some states, physicians may not be employed by corporations or non-physicians.
• Penalties may include fines, adverse licensure actions, or injunctions to stop practice.
• Physicians and corporations employing physicians must beware CPOM when practicing across state boundaries – including practicing telemedicine.
Telehealth – Credentialing/Privileging
• States usually require credentialing of practitioners to provide services at hospitals or other facilities.– State statutes or licensing regulations.– Common law tort duty.
• Medical staff bylaws require credentialing.• Statutes, regs, or bylaws may require
individual credentialing.• Individual credentialing for telemedicine is
problematic.– Facility may have many providers rendering
telemedicine services, e.g., teleradiology.– Facility may not be qualified to assess
competence of telemedicine providers through internal credentialing.
Credentialing: Hospital COPs• Allow credentialing by proxy for
telemedicine providers, i.e., originating site hospital may accept credentialing done by distant site if meet certain standards.
• Must have agreement between hospital/CAH and either:– Distant-site hospital that participates in
Medicare; or– Distant-site telemedicine entity, i.e.,• provides telemedicine services,• not a Medicare-participating hospital, and• provides services in manner that allows
hospital/CAH to meet all COPs.(42 CFR 482.12 and 485.616; 76 FR 25550 (5/5/11); CMS Transmittal 78 (12/22/11)
Credentialing: Hospital COPs• COPs only allow credentialing by proxy for
telemedicine privileges.• If practitioner provides non-telemedicine
services, hospital must credential practitioner in traditional manner.
• For telemedicine services, hospital/CAH’s governing board has the option to:– allow medical staff to rely on
credentialing done by distant hospital or entity under COPs, or
– require med staff to credential each telemedicine provider.
Credentialing: Medical Staff Bylaws
• May need to update your medical staff bylaws to address telemedicine.– Qualifications for medical staff members.
• e.g., geographic proximity, admissions, etc.– Categories of medical staff members.
• e.g., add telemedicine staff category– Privileges.
• e.g., grant telemedicine privileges without med staff
– Credentialing process.• e.g., allow credentialing by proxy based on new
COPs.• CMS survey process requires review of
medical staff bylaws to verify compliance.
Telehealth – Reimbursement/Parity
• Reimbursement for telemedicine is expanding … slowly
• Medicare Part B covers certain services like office visits and consultations that are provided using an interactive 2-way telecommunications system (with real-time audio and video) by a doctor or certain other health care provider at another location.
• Originating site must be in rural HPSA or non-MSA county and property facility:– doctor's office - hospital– critical access hospital - rural health
clinic– A federally qualified health center– A hospital-based or critical access hospital-
based dialysis facility– A skilled nursing facility– A community mental health center
(42 USC 1395m(m); 42 CFR 410.78)
Telehealth – Reimbursement/Parity
• Distant practitioner must be:– Licensed under state law to provide the
telemedicine service (i.e., within scope of practice), and
– One of following:• Physician• Nurse practitioner (“NP”)• Physician assistant (“PA”)• Nurse midwife• Clinical nurse specialist (“CNS”)• Clinical psychologist and clinical social worker, but
may not bill for certain codes• Registered dietician or nutrition professional
• Only certain services covered.See www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/telehealthsrvcsfctsht.pdf.
Telehealth – Reimbursement/Parity
• As recently as 2011, only 11 states had telehealth parity laws, which require that insurers reimburse telehealth providers exactly as they would for an in-person visit.
• More than 200 telemedicine bills were introduced in state legislatures in 2015.
• By 2016, 29 states and the District of Columbia have parity laws.
• Within Medicaid programs, about half of the states require that a patient be in a medical facility for telehealth appointments, rather than at home.
Telehealth - Parity
Telehealth - Parity
• Even among states that do have parity laws, the policies can vary widely from one state to the next.
• The differences among the states can be frustrating for telemedicine providers.
• Check relevant state laws.• Check payer contracts.• Ensure you use correct “site of service” or
other modifiers.
Telehealth – Liability Issues• Applicable standard of care– Different community standard may apply.– Presumably, remote practitioner must
comply with the same standard of care as a practitioner at the originating site.
• Beware:– Is use of telemedicine appropriate for
patient’s care?– Sufficiency of telemedicine equipment or
technology.– Training and qualifications of users.– Effect of other laws.– Vicarious liability for others, including
remote practitioner and originating site personnel.
Telehealth – Liability Issues• Physicians and other medical professionals
who practice telemedicine run into a patchwork of state laws.
• No two states are the same.• A few state medical boards are adopting
practice standards with higher specifications for telemedicine than in-person care.
• These boards have considered legal guidelines requiring an initial examination be conducted in-person and a physician-patient relationship be established in-person.
• Some boards have also considered other telemedicine barriers including requirements for a telepresenter, in-person follow up exam, and patient informed consent.
Telehealth – Liability Issues• Telemedicine providers must navigate the
medical practice laws in their state or risk punitive action by their board.
• A state-by-state evaluation of telemedicine policies found nearly 50 combinations of requirements, standards, and licensure policies (patient-physician encounter requirement, telepresenter requirement, informed consent, and out-of-state practice). – http://www.americantelemed.org/docs/default-source/p
olicy/50-state-telemedicine-gaps-analysis--physician-practice-standards-licensure.pdf?sfvrsn=6
• Know the law of both the originating site and the distant site.
Telehealth – Liability Issues• Informed consent from patient or representative is
critical.– Know the relevant laws for effective, informed
consent.– Informed consent should include:
• Discussion of risks, benefits, and limitations of telemedicine services, including availability of services and provider, technical limitations, etc.
• Identify persons involved in providing care.• Whether you will record telemedicine sessions.• Privacy or security of data communications system,
especially if use open network.– Disclaim responsibility for entities that are not your
agents.
Telehealth – Liability Issues• If crossing state boundaries even through
telemedicine, assume that you will be subject to laws of other state.– Licensure requirements– Professional standards and standard of care– Informed consent– Statute of limitations– Caps on damages– Pre-litigation screening– Immunities and defenses– Reimbursement rules– Confidentiality requirements
Telehealth – Liability Issues• Liability insurance policies may exclude:– Injuries from services other than face-to-face
encounter.– Injuries from unauthorized practice of medicine.– Legal actions due to unauthorized practice of
medicine.• Administrative or licensure actions• Criminal actions
– Regulatory violations resulting from telemedicine, e.g., HIPAA violation, FDA violation.
* Check your malpractice insurance coverage.
• May be liable for abandoning patient if fail to give patient sufficient time to transfer care.– Tort liability for patient abandonment–Medical Practices Act violation
• To avoid potential abandonment claim:– Ensure patient understands scope and
limits of practitioner’s involvement in care.• Informed consent• Written agreement or notice
– Give patient adequate notice and time to transfer care before terminating relationship.
Telehealth – Liability Issues
Additional Resources
Additional Resources• Federation of State Medical Boards,
http://www.fsmb.org/grpol_telemedicine.html.– Summaries of state laws governing
telemedicine.– Legislative update.
• Center for Telehealth & e-Health Law (“CTel”), http://www.fsmb.org/grpol_telemedicine.html.– Publications and guides.– News and information.
• American Telemedicine Ass’n, http://www.americantelemed.org/– Practice standards and guides.– News and information.
Holland & Hart Website
HIPAA Resources
Additional Resources• Health Law Basics monthly webinar series– Past webinars available at
www.hhhealthlawblog.com– Telemedicine (July 2015)
• Healthcare Update and Health Law Blog– Under “Publications” at
www.hollandhart.com.– E-mail me at [email protected]
