Source: hillside7/Pixabay

The US licensure process for various healthcare disciplines is a confusing collection of state-specific rules that vary between disciplines. Exceptions exist and are often the rule, making it incredibly challenging to offer overarching opinions or statements, let alone solutions.

By and large, medical licensing in the US works based on the location of the patient – ​​regardless of the state the patient is in, an attending physician must be licensed in that state. Health care licensing boards regulate health care practices to protect people in their state from unethical or harmful practices by unqualified individuals.

These systems were developed long before modern travel and communication technology. During COVID 19 pandemic, college students went home to their families’ homes, often in other states, for distance training. As the students attempted to continue seeing therapists in their college student health programs, the therapists encountered complex, varying state regulations for their many student patients. Similar problems exist for specialist clinics that offer “second opinion” consultations. At some National Expert Health Centers, they offer online remote consultation by expert clinicians, after reviewing chart records, and remote consultation with patients in other states. Unfortunately for some interested patients, due to varying state definitions of what constitutes telehealth and/or health care, clinics may refuse to offer such services to individuals from certain states.

Different strategies to deal with these challenges

There are currently a number of different strategies in motion that may affect the future ability of licensed physicians to practice in other states. Currently, there is no clear winner, nor is there any overall organization in these different strategies.

Interstate Compacts: There are many discipline-specific intergovernmental “compacts”. As an example, under PSYPACT, various states agree to allow psychologists licensed in other states to practice remotely in their state, according to agreed upon PSYPACT rules. These compact rules can be as complex as individual license rules and can cause additional complexity. For example, according to PSYPACT, the remote practicing psychologist must be physically located in the state of their “home” license while providing remote services, so they cannot practice remotely during the vacation, unless they are licensed in their vacation state. Similar agreements exist for nursing, healthcare, counseling and social work. Unfortunately, none of these compacts are universal in the United States, and each compact requires different systems, rules, and practices for each different health care discipline. In my home state of New Mexico, these compacts have generally been rejected by the state legislature due to economic and legal concerns about the implications of these compacts. A recent NM legislative hearing provides good insight into these legislators’ concerns.

State-specific rules: Different states and regulatory agencies implement different rules for different disciplines, sometimes offering processes such as fast-track licensing and/or reciprocity agreements for practitioners licensed in other states. In some states, they allow limited temporary practice in their state (including remotely) for clinicians who hold unlimited licenses in other states. Of course, each state’s rules and practices vary, and identifying and complying with these requirements may require careful regulatory analysis.

Dispute free of opinion: During the covid-19 pandemic, a licensed therapist in Virginia was prohibited from offering remote therapy to individuals living in Washington DC, even though that doctor saw these individuals in her practice when they drove a few miles to see her in Virginia. A lawsuit filed on her behalf claimed that “therapy is speech” and that government cannot restrict such speech or prohibit licensed physicians from speaking to their patients remotely, regardless of the patient’s location. District trial and appellate proceedings governed that the Washington DC boards could not regulate a doctor’s speech in another state, although there is no clarity yet on how the Washington DC boards will address this in their policies and regulations. But the same therapist filed a similar lawsuit against the state of New York, which was rejected by several courts because the therapist had access to procedures such as applying for a temporary license in New York and the state had a reasonable claim to regulate health care and protect the public. United States Supreme Court declined to review this case, so that we have no national decision on the issue of free speech.

Interstate Commerce Litigation: A New Jersey lawsuit was filed by a youth who sought continued specialty cancer care from expert doctors in other states. Due to New Jersey’s licensing restrictions on telepractice in their state, the clinics were prohibited from offering their services remotely. The lawsuit includes the above First Amendment questions, but the weight of the suit focuses on prohibitions in the United States Constitution that prevent state governments from restricting interstate commerce without substantial local benefit. Because the practice of offering remote expert health care is a paid professional service, it is argued that this falls under the Commerce Clause of Article I of the Constitution and that states cannot prohibit this commercial exchange. This matter is still at an early stage; so we cannot expect quick broad implications or results.

National legislation: Many doctors raise a need for national health care licensing, but this seems unlikely, as state legislators are reluctant to relinquish the ability to regulate practice in their state. During the pandemic, Texas Senator Ted Cruz introduced federal legislation to allow telepractice across the country, for all physicians licensed in a state, but this was not ultimately passed and was limited to the effects of the covid-19 pandemic. Federal action may ultimately have an impact in this area but will need to address and integrate the intermingling of state and national licensing infrastructures.

Source: Gerd Altmann/Pixabay

Practice across state lines: Some doctors simply do their best and offer support and services to people they treat, with less concern about where the person is at any given time. This may or may not be ethical, may or may not be illegal, and may or may not put the doctor or patient at risk depending on the circumstances. Such services are generally unlikely to be billable to third-party payers. Some doctors whose patients travel to another state and experience a mental health crisis face a dilemma. This scenario forces the physician to weigh their ethical requirements to provide care without abandoning the patient, versus the question of the patient’s physical location when they contact the physician for support in a crisis.

If the doctor is not licensed in the patient’s state, and the patient receives substandard care and complains to their state licensing board, that board can send the doctor a “Cease and Desist” order or even threaten legal or financial penalties. They can try to file local charges for practicing in their state without a license, if the issues warrant. Such fees may or may not affect that telephysician. The patient can file a complaint with the doctor’s local state board. However, since that state’s board exists to regulate the practice of health care within their own state, it is unclear whether that board will have jurisdiction to regulate that physician’s practice outside their borders.

Coaching: Some clinicians try to separate their practice in other states where they are not licensed, labeling it as coaching rather than clinical practice. Coaching is an unregulated activity and clients of coaches may have nowhere to complain in the event of poor or unethical service. This strategy has not been fully tested legally, but may affect the physician’s liability insurance coverage. Providing coaching rather than clinical care can still leave them subject to a licensing board declaring their coaching practice still “unlicensed practitioners.”

In my national consulting work, I regularly receive questions about cross-border licensing and practice from both clinics and people seeking care. Given the extraordinary cat’s cradle of regulations, rules and practices, I don’t expect this complicated situation to resolve itself any time soon. As I do here, I refer people with these questions to their local boards’ regulations and the above areas of law, and encourage them to educate themselves on these complex issues. In service to the many people in our country who seek health care, it is in everyone’s interest to find integrated, consistent solutions.

Disclosure: I have served on the New Mexico Board of Psychologist Examiners for several years. My views here are solely my own and do not reflect the views or decisions of NMBOPE or any other entity. My comments here do not represent legal or regulatory advice which must be based on local regulations and a specific clinical case or practice.