The rapid development and utilization of remote patient monitoring tools in health care exposes the limitations of state licensure laws that generally require physicians to be licensed in states where their patients are located. These laws are predicated on the physician and patient being in the same jurisdiction. However, when using mobile-devices to actively monitor patients (such as a device sensor with 4G chipset that can directly connect to cellular networks), there is no single geographic anchor or fixed moment in time from which to define the encounter, episode or point of service.
Rather, the encounter can be viewed as more continuous and spread out over time. Even if one can break down the services into discrete units (e.g. each instance where a physician is reading and interpreting remote monitoring data, advising the patient, or adjusting prescriptions based on such data) it will be difficult if not impossible for the physician to ensure that during each such instance the patient is physically located in a state where the physician is licensed. While the program of care may begin on site at a medical center or physician’s office, it may continue offsite for weeks or months during which the patient may be outside the state where the physician is licensed.
Imagine a situation where a patient travels to a medical center outside of his home state to enroll in a chronic disease management program that uses remote monitoring tools. While at the medical center, the physician establishes a remote monitoring link with the patient at the medical center that will last for six months. Then the patient leaves the medical center and travels back to his home state. Under state licensure laws, can the physician(s) at the medical center continue to provide services to this patient during the six month period?
There are many ways in which a state might respond to this scenario and others like it.
Some states may enforce the law to the letter, requiring physicians to keep track of the location of their patients, and penalizing all remote monitoring and associated activities provided to patients physically located out-of-state. To lawfully provide remote monitoring services to out-of-state patients under these circumstances, providers would need to continuously track patients by location and provide access to practitioners who are licensed in each of the states where the remote monitoring patients may be located during the monitoring period. Although a literal interpretation of the existing laws in many states may support such an approach, due to the increased costs and administrative complications associated with tracking patients and establishing licensed practitioners in multiple states, many providers would find this to be unworkable. Therefore, if states take this approach to enforcement, then many providers and technology developers are likely to abandon their efforts to develop innovative remote monitoring solutions. Perhaps, for this reason, some medical boards will be reluctant to endorse this approach.
Alternatively states may view an initial (and/or follow-up) in-person encounter(s) between the physician and the patient as the only relevant “encounters” for purposes of complying with the licensure requirements. For example, states may see such activities as an extension of the custom that has traditionally been used to justify non-routine encounters between physicians and established patients while they are traveling or temporarily residing out-of-state. What is significant here is that such an approach would be an implicit acceptance of the practice of telehealth across state lines and if this lid is opened, it would be very hard for regulators to maintain the distinction between in-state and out-of-state telehealth.
Lastly, some states may recognize that licensure restrictions need to be changed and begin the process of removing certain interstate practice restrictions. A number of ideas on state licensure reform have been proposed over the years that states can draw from: e.g. entering compact agreements with other states (similar to the Nursing Licensure Compact); creating certain exceptions for remote monitoring and other telehealth practices; or seeking a national telehealth licensure framework under federal law. For example, just last week, Representative Thomson from California introduced a Bill in Congress that, if enacted into law, would create a federal telehealth licensure standard for treating individuals enrolled in federal health plans.
One thing we can be sure of is that as telehealth continues to advance and the physical location of the patient becomes increasingly irrelevant, pressure on states to reform licensure requirements will only intensify.