Legislatures Consider Telepractice


The current rise in telepractice—interactive, long-distance service delivery where the consumer resides in one location and the practitioner in another—has created a flurry of legislative activity in 1997. In the coming months, lawmakers will be asked some tough questions. For example, will telemedicine raise or reduce consumer costs? Enhance or lessen the quality of health care?

This article is the first in a series that will explore current telepractice legislation. CLEAR hopes the series will offer insight to lawmakers grappling with these difficult questions.

The states. This legislative season, 11 states (Arizona, Colorado, Georgia, Maryland, Mississippi, Nebraska, New Hampshire, North Dakota, Oklahoma, Virginia and Washington) have 14 pending bills that address either telemedicine reimbursement or out-of-state practice issues. For the years 1991-1996, 18 states appropriated funds for various telemedicine projects, eight passed legislation dealing with reimbursement, and eight passed licensure legislation.

The current licensure system, in which each state establishes its own laws governing the practice of professions, perhaps presents the most complicated barrier to telepractice. Some states such as Oklahoma and South Dakota permit infrequent telepractice consultations across state lines. Tennessee issues a limited license to out-of-state telepractitioners. Texas, on the other hand, requires health care professionals to obtain full licensure from the Board of Medical Examiners before engaging in telepractice.

The federal government. If recently introduced legislation is passed, the federal government may preempt a customary state domain, the regulation of health care professionals. Whether states even have the authority to regulate the practice of health care delivery is in question.

On March 3, 1997, Senator Kent Conrad introduced The Comprehensive Telehealth Act of 1997 which would require that: 1) telehealth services be eligible for Medicare reimbursement; 2) the Secretary of Health and Human Services study state-to-state licensure barriers for telehealth practitioners; 3) the Federal Joint Working Group on Telehealth make annual reports to Congress; and 4) a grant and loan program provide rural hospitals and clinics, universities, libraries and other appropriate organizations resources to develop local telehealth networks.

Primary issues for lawmakers. State barriers to professional mobility will assume primary importance in upcoming legislative debates. The Center for Telemedicine Law states there is no proof that fifty licensing laws for the same profession, with fifty different standards for entry to practice and fifty scopes of practice, really are necessary to protect the citizens of this country from harm. These state barriers do not exist for federal health care practitioners, who need only to be licensed in one state to treat federal beneficiaries in any jurisdiction.

Reimbursement remains a topic of concern because it will determine how quickly telemedicine will spread. Once practitioners can be compensated for telepractice as they are for traditional service delivery, activity should rise dramatically. Currently, the Health Care Financing Administration has approved reimbursement for only radiology and pathology delivered long distance, although it has initiated a demonstration project for other services. In contrast, nine states have approved Medicaid reimbursement for telepractitioner services.

Additionally, there are unresolved liability and professional discipline questions about where the long-distance service is being provided. Is it where the client is located or where the licensee is? The American Telemedicine Association believes the locus of practice resides with the patient, while the Federation Of State Medical Boards says it resides with the practitioner. The General Accounting Office summed up the situation best: "The legal and regulatory barriers to implementing telemedicine activities are licensure issues, malpractice liability, privacy and security, and regulation of medical devices. These barriers will require federal, state, and private efforts to solve them."

(A longer version of this article, with references, will appear in the May issue of State Government News, a publication of the Council of State Governments.)