Federation of State Medical Boards Releases Final Interstate Licensure Guidance for Telemedicine

The Federation of State Medical Boards (FSMB) released the Interstate Medical Licensure Compact (Compact) as model legislation to address physician concerns of treating patients who are located in a different state than that in which they are licensed to practice. Typically, physicians must be licensed in the state where their patient is located, thus making interstate telemedicine services nearly impossible for physicians who are not licensed in multiple states. The Compact is not meant to step on the toes of state legislatures, but reduce the barriers to gaining licensure in multiple states.

Recently, the FSMB released a telemedicine model that they referred to as “common-sense guidelines,” but, in some cases, were still criticized for being inflexible. The release addressed issues including i) determining when a physician-patient relationship is established; ii) securing privacy of patient data; iii) guaranteeing proper evaluation and treatment of the patient; and iv) limiting the prescribing and dispensing of certain medications. Further, the FSMB set guidelines on an array of topics including licensure, establishing a patient-physician relationship, informed consent, medical records, and disclosures on online services being provided for telemedicine purposes.

In regard to licensure, a physician must be licensed or under the jurisdiction of the medical board where a patient is located and being treated. Additionally, a physician-patient relationship must be established. A physician-patient relationship is created when a physician agrees to undertake the diagnosis and treatment of the patient and, likewise, the patient agrees to be treated by the physician. When evaluating and treating a patient via telemedicine, a physician is held to the same standards that apply to an in-person encounter. Issuing a prescription based solely on an online questionnaire does not constitute an acceptable standard of care. Prescribing medications is at the discretion of the physician, but in the absence of a traditional physical examination, doctors must implement cautionary measures to ensure patient safety.

According to the Compact, a physician can designate a member state as their principal license state to register for an expedited license if their principal state is i) the state of primary residence for the physician; ii) the state where at least 25% of the physician’s practice of medicine occurs; iii) the location of the physician’s employer; or iv) if a state does not qualify in the first three mentioned sections, the state designated as the state of residence is the one used for purposes of federal income tax.

Physicians who wish to practice telemedicine in a state that lacks specific licensure requirements for telehealth providers may be required to seek a full medical license. There are many states that require telehealth providers to seek a full medical license in order to practice medicine in that state. New Jersey is one of those states.

The New Jersey Board of Medical Examiners has not adopted the Compact at this time, but as telemedicine grows in stature, it is important to pay attention to the Compact’s impact on medical boards across the country.