Treating Out of State Patients

Physicians, advanced practice providers (APP), and other licensed health care professionals frequently ask about treating out of state patients.  Their established patients travel out of state and out of the country for business, vacations, college, or sports or academic camps, or because they are part-time residents of another state or country. Some new information may give physicians, APPs, and other licensed providers some interstate telehealth hope, but the Risk Team’s recommendations about practicing telemedicine across state lines remain the same.

The Practice of Medicine is Regulated by the States 

To maintain continuous care, most licensed medical and health care providers and their patients want licensed providers to practice telehealth, across state lines and even across United States (US) borders.  

• • They are disappointed to learn that a physician’s, APP’s, or licensed professional in counseling’s state-issued license is not portable and only authorizes them to provide services in the state that issued the license.  
    
    
  • They are surprised to learn that rendering opinions and diagnoses and recommending and prescribing treatment for established patients in other states probably requires a license in that state. 

The states, through their legislatures and licensing boards, are still working under laws intended to protect the interests of the licensees and citizen patients but the federal court is now involved. 

A Federal Court Will Consider the Limitations of a State License 

When it comes to out of state telehealth consults, licensed providers struggle with the limitation of their state licenses and that, to date, there is no federal or national telehealth license. Frustrated by one state’s licensing restrictions, a Massachusetts pediatric radiation oncologist, a Pennsylvania neurosurgeon, and their New Jersey patients have sued the New Jersey Board of Medical Examiners. As plaintiffs, they allege the state’s restrictions violate the US Constitution and deny the patients access to highly specialized care not available where the patients live. 

The Massachusetts pediatric oncologist successfully treated a New York patient, then aged 18 months and newly diagnosed with medulloblastoma. The patient’s family moved to Massachusetts for 2 months for proton therapy. 

When the therapy ended, the patient’s family returned to New York for a year with instructions for annual scans and monitoring appointments using telehealth. The pediatric oncologist treated the patient, answered the parents’ questions, and discussed treatment alternatives in-person and by telephone for several years while the patient was in Massachusetts and New York. 

The patient’s family then moved to New Jersey with the intention of using telehealth to continue the scans and monitoring. During the COVID-19 pandemic, New Jersey offered a temporary emergency license to out of state physicians allowing them to provide New Jersey citizens the full range of care appropriate for telemedicine. The application process for the temporary emergency license was free and only took 24 hours. 

The Massachusetts pediatric oncologist obtained a temporary emergency license and monitored the patient’s progress by telehealth, including telephone calls. When the temporary emergency license program expired in March 2023, the state sent letters to the licensees directing them to cease and desist from engaging in any further medical practice in New Jersy until they obtained a regular license. Having to obtain a regular license thwarted the oncologist’s plan for highly specialized telehealth. 

A Pennsylvania neurosurgeon specializing in cranial base surgery had operated on and followed many out of state patients and one of these patients lived in New Jersey.  Upon diagnosing giant craniocervical junction chordoma, a New Jersey college freshman and his New Jersey physicians consulted with the Pennsylvania neurosurgeon via telehealth before the patient traveled to Pennsylvania for surgeries and immediate post-operative care.  

The patient returned to college in New Jersey with the intention of using telehealth and regular telephone calls with the Pennsylvania specialist for monitoring. The neurosurgeon received New Jersey’s cease-and-desist letter and was concerned about engaging in telehealth without a New Jersey license. 

In their lawsuit, the pediatric oncologist, neurosurgeon, and the New Jersey patients request a federal judge deem New Jersey’s licensing laws overly burdensome and unconstitutional. They listed the following burdens: 

• • A New Jersy licensing fee of $550; 
    
    
  • Background checks, fingerprinting, and related fees for each; 
    
    
  • Significant documentation;
    
    
  • A New Jersey processing time of 3 months; 
    
    
  • Monitoring varying renewal dates and continuing medical education requirements for each state license;  
    
    
  • Continuing medical education costs; and  
    
    
  • License renewal fees.  

They further pointed out that if the physicians continue to treat their New Jersey patients by telehealth without regular New Jersey licenses and New Jersey pursues enforcement of the law they may be subject to fines or penalties in the states in which they hold licenses. They argued that these burdens were disproportionate to the number of patients they may have in New Jersey at any given time. 

The plaintiffs filed the suit in December 2023 and progression of the case to a trial has been slow. The constitutional issues are complicated, and a ruling could have national implications. 

• • The plaintiffs allege that New Jersey’s licensure laws interfere with Congress’ constitutional power to regulate interstate commerce. 
    
    
  • They also allege that New Jersey’s laws violate the plaintiffs’ right to practice an occupation under the US Constitution’s Privileges and Immunities clause. 
    
    
  • They further allege that the state’s laws violated the plaintiffs’ first amendment right to free speech and the ability of patients and physicians to discuss potential treatment and check in after treatment. 

The MICA Risk Team is monitoring this lawsuit and will report on the disposition when the case is resolved. 

Obtaining Licenses in Multiple States 

Some physicians, APPs, and other licensed health care professionals are applying for licenses in the states their patients may visit or reside in part-time. Some are applying for licenses through the Interstate Medical Licensure Compact. Compact licensure is not available for all licensed providers. 

The Interstate Medical Licensure Compact is an agreement between participating states’ and territories’ licensing boards to make the process simpler and more efficient for physicians applying for licenses in multiple states. The Compact deals with some of the burdens expressed by the plaintiffs in the New Jersey lawsuit, such as significant documentation and multiple applications, background checks, and fingerprinting, but it does not address all the burdens. 

• • Eligible physicians may complete one application for licenses in multiple states. The medical licenses are still state issued, but the application and processing time should be shorter than applying for licenses in each individual state. 
    
    
  • To use the Compact, physicians must pay a nonrefundable $700 application fee plus the license fee for each state where the physician wants to practice. Individual state licensing fees run between $60 and $840. 
    
    
  • Alaska, Arkansas, California, New Mexico, Oregon, Puerto Rico, South Carolina, Virginia, and the Virgin Islands do not participate in the Compact so physicians whose patients are in those states should apply directly to the state or territory. 
    
    
  • Florida, Hawaii, and Rhode Island have passed the necessary legislation to be participating Compact states but have not yet implemented any procedures. Physicians should check with those state licensing boards before completing a Compact application. 

Physicians who hold state-issued medical licenses, awarded through the Compact or based on physicians’ individual applications to the states, agree to abide by or comply with each state’s statutes and regulations. A burden that the plaintiffs did not list in their lawsuit is learning, knowing, and complying with the laws of other states. 

Advanced practice nurses may consider using the Advanced Practice Registered Nurses (APRN) Compact to obtain licenses in Delaware, North Dakota, South Dakota, and Utah. Unfortunately, most states have not passed the necessary legislation for their boards of nursing to participate. 

The Physician Assistant (PA) Licensure Compact for facilitating multistate practice for PAs is not yet operational. The Compact expects to be operational in 2025 or 2026. 

Before Treating Out of State Patients 

Some physicians, APPs, and other licensed health care professionals believe the likelihood of a licensure problem while their patient is traveling or residing in another state or country is low. They are willing to accept the risk of an out of state licensure board action that could affect their other state licenses and/or a medical malpractice lawsuit in strange or unknown court system.  

Physicians, APPs, and other licensed health care professionals should have an informed consent discussion with themselves before treating out of state, and out of country, patients.  

• • They should understand the risks and benefits of, and alternatives to, not having a license where the patient is located. 
    
    
  • In most states, practicing medicine includes electronically transmitting or calling in prescriptions to pharmacies, telephone calls, and conducting telemedicine appointments for and with patients located in that state.  
    
    
  • Licensed medical and health care professionals should check with their broker or their medical professional liability insurance company’s underwriting department to see if their policy covers services that they provide to patients located in other states and countries. 
    
    
  • Physicians can use the Center for Connected Health Policy’s state and territory map to see if they need a license or to register with the licensing board to provide their services to patients in states where they do not have a license. 

Waiting for State Laws to Catch Up with Technology 

State legislatures and licensing boards did not contemplate virtual care when they first passed their licensing laws. As a result, state laws are intended to protect the health and safety of the state’s citizens and promote the quality of care delivered in the license-issuing state. It will take some time for state legislatures and licensing boards to address highly mobile patients and the technology available for long distance medical care.