4 Strategies for Solving the Telehealth Licensure Debate

Interstate Licensure Compacts

Pre-COVID-19, interstate licensure compacts were all the rage – and to some extent they’re still quite popular. 

Licensure compacts generally establish a streamlined path to licensure in member states, giving providers the opportunity to acquire licenses more quickly. The model allows state medical boards to keep control over the licensing process while making it easier for providers to establish a telehealth presence in other states.

The Interstate Medical Licensure Compact is the largest and most prominent compact. Launched by the Federation of State and Medical Boards (FSMB) in 2017, the IMLC is now overseen by its own commission and comprises, as of July 2021, 25 active states; another three states are part of the compact but haven’t processed licenses yet, while two states plus Washington DC have passed legislation but haven’t joined the compact yet and nine states are debating joining.

Supporters say the compacts give providers an easier method of applying for and getting licenses in other states, while preserving the state medical board’s authority to regulate providers based in that state.

“The state medical licensing process has a long and solid history of protecting patients and ensuring standards of care,” Marschall Smith, executive director of the IMLC, said in a March 2018 interview with mHealthIntelligence. “The IMLC process provides a successful state-based answer to the national licensure question, which is especially important for two reasons: First, the practice of medicine occurs where the patient is located, not the physician. It is unclear how this primary foundation would be changed with a national license or potential impacts on the patient rights or expectations of care. Additionally, state-based licensure provides local accountability if there are issues in patient care. Local accountability is naturally more responsive to the necessary balance of patient and physician protections.”

The IMLC, which focuses on licensure for physicians, had a good deal of momentum when it launched, but enthusiasm has tailed off since then. Some states have voted against joining it, while others aren’t even considering it, making it almost impossible for a nationwide licensing compact to take hold unless Congress steps in (Indeed, one bill introduced in late 2020 sought to penalize states through reduced federal funding if they don’t join the compact).

Critics of the interstate licensure compact strategy point out that they still require providers to get licenses from each state in which they want to practice – and incur the administrative fees and costs associated with those licenses, as well as a fee to join the licensing compact. They suggest that many providers may be deciding to limit their telehealth outreach or not use it at all to avoid the hassle of licensing.

The IMLC and the licensure compact model have also come under criticism from those who feel the program spends far too much money without making things that much easier. 

Earlier this year, an article in Health Affairs questioned whether state medical boards (SMBs) are stifling telehealth adoption by jealously guarding the licensing process.

“SMBs continue to maintain unnecessary restrictions on good medicine,” the article, written by Eli Y. Adashi of Brown University, Barak D. Richman of Duke Law School and Idaho physician Reuben C. Baker, says. “Many continue to resist ceding authority to non-physicians, undermine cross-state reciprocity compacts while jealously controlling their exclusive state licensure regimes, and use their regulatory authority to impede innovation. As health care costs continue to outpace inflation, the urgency to remove SMB-sustained inefficiencies remains pressing.”

The three suggest that SMBs could evolve, under pressure from the federal government, to become more accepting of licensure freedoms that promote telehealth.

“SMBs could not only embrace the value and rigors of competition, but they also might provide useful leadership in encouraging physicians to pursue reform,” they conclude. “In short, the new SMB could be one that abandons its role as an ossified gatekeeper and crafts a visionary role for expanding consumer welfare and professional dynamism.” 

Other compacts, targeting physical therapists, psychologists, audiologists and speech and language pathologists and EMS providers, have been slowly gaining ground. In June 2021, for example, the Psychology Interjurisdictional Compact (PSYPACT) passed the midway point with 26 member states when Maine joined.

“Each healthcare profession has approached the licensure process in a different way, as they should,” says Smith. “The unique requirements of a physician and importance of patient protection lend themselves well to the IMLC process, where a physician uses the expedited process to obtain a license from each state where they intend to practice.”

Licensure Reciprocity and the Nursing Model

A concept seemingly gaining momentum in recent months, due in part to its popularity during the coronavirus pandemic, is licensure reciprocity, also called portability. In this model, states recognize medical licenses issued by other states, thus allowing providers licensed in those states to treat residents. 

With COVID-19 pushing the nation’s healthcare ecosystem to the breaking point, several states passed emergency measures allowing licensure reciprocity for the duration of the public health emergency, thus allowing for the expansion of outside telehealth programs to treat patients in-state and giving health systems the leeway to treat patients in other states.

Telehealth license reciprocity can be traced back to the nursing profession. The National Council of State Boards of Nursing supports portability in its Nurse Licensure Compact (NLC), and an Enhanced Nurse Licensure Compact (ENLC) that went live in 2018. As of May 2021, 33 states are part of the compact, while one is in the process of joining and another 12 are considering legislation to join. Only four states – Nevada, New York, Connecticut and Hawai’i – currently have no plans to join.

The strategy is closely aligned with the nursing profession, where nurses often move around and are called on to interact with patients or providers in other states. But others say that portability is not a good fit for doctors or specialists who have to meet different requirements for obtaining a license.

One organization advocating for license portability is the Alliance for Connected Health, which uses the concept in a proposed Medical Excellence Zone – a region or collection of states that basically recognize medical licenses issued by those states. The alliance has even developed draft legislation for states interested in the concept.

Under this plan, practitioners would be able to practice in multiple states, though they wouldn’t be allowed to establish any physical offices in those other states. Each state’s medical board would keep its power to regulate practitioners licensed in that state.

“Patient access to care is the paramount objective of the Medical Excellence Zone, and the increased flexibility offered by the Zone for patients to access clinicians of their choice will help enable stronger patient-provider relationships, enhance continuity of care, and provide for more convenient telehealth and after-hours care from those providers,” alliance spokesman Christopher Adamec says. “Additionally, this policy will help increase access to care for patients who do not already have the services they need where they reside, especially for communities that are underserved or are experiencing provider shortages.”

The group also argues that portability is better than licensure compacts because it bypasses the bureaucratic complexity of state licensing.

“One of the biggest barriers to telehealth becoming a regular patient and provider choice is the administrative burden caused by the variation in licensure requirements from state to state,” the group says. “Uniform national standards across clinical practice areas are in place, but there is wide variation in state licensing processes.

In the case of physician licensure, for example, all states require postgraduate training, proof of successful completion of all three steps of the US Medical Licensing Examination, and training verification forms. However, some states add additional unique requirements for medical licensure such as background checks, completing specific course work, providing additional documents such as birth certificates, or even character witnesses.”

In a Feb. 25 article in the New England Journal of Medicine, Ateev Mehrotra, MD, and Alok Nimgaonkar of Harvard Medical School and Beth Israel Deaconess Medical Center and Barak Richman, JD, PhD, of Duke University lean toward federal authority to encourage reciprocity as the best option.

“Building on prior legislation regulating physicians in the VA system and TriCare, Congress could mandate licensure reciprocity in the context of Medicare, another federal program,” they wrote. “Physicians could be permitted to provide telemedicine services to Medicare beneficiaries in any state, as long as they possess a valid medical license. Such a policy would most likely accelerate the adoption of state legislation regarding reciprocity, thereby affecting patients with other forms of insurance as well.”

Mehrotra and his colleagues say the idea of a single medical license may be impractical, since it goes against state medical boards that have been around for more than a century.

“Boards also play an important role in disciplinary activity and take action in the cases of thousands of physicians each year,” they wrote. “Switching to a federal licensure system could undermine state-based disciplinary authority. Moreover, both physicians who provide predominantly in-person care and state medical boards have a vested interest in maintaining state-based licensure systems to limit competition from out-of-state providers, and they would probably try to derail such reform.”

Licensing providers based on their location “is a clever solution,” they add, but that also goes against the state medical boards, and could pose a problem with disciplinary issues and reach.

“At the same time, hoping that states will act on their own to expand options for out-of-state licensing appears to be an ineffective strategy,” Mehrotra and his colleagues wrote. “The low rate of use of the interstate compact among physicians in participating states highlights the ways in which administrative and financial hurdles can continue to impede interstate telemedicine. It’s unlikely that states will enact permanent reciprocity laws on their own, given internal resistance.”

One License For Everyone

Perhaps the most popular – and least likely – idea for broaching the licensure barrier is to have one national license, enabling providers to practice anywhere in the country. 

In an informal Twitter poll of mHealthIntelligence followers earlier this year, the one-license concept took 62.5 percent of 56 total votes, far outpacing portability (19.6 percent), licensure compacts (16.7 percent) and “other” (7.1 percent).

One person in favor of single licensure is Ashley Maru, MD, JD, MBA, an assistant professor of radiology at the University of South Florida. He argues that current licensing structures, from state boards to compacts, hinder care providers from practicing to the full extent of their profession and contribute to the lack of access to care in rural and remote places.

Maru says the federal government should either create a licensure compact - like the NLC - that allows all states to recognize licenses earned in other states, or it can take a more aggressive path and mandate state recognition of medical licenses held in other states. 

He points out that state medical boards pretty much ask the same thing of doctors they’re licensing: they all require a candidate to obtain an MD or DO degree, they require at least a year of postgraduate training, they require completion of either the United States Medical Licensing Examination (USMLE) or the Comprehensive Osteopathic Licensing Examination (COMLEX-USA), and they evaluate the physical, mental and moral fitness of candidates.

“This homogeneity of qualitative standards across states undermines the policy need for a single physician to obtain multiple state licenses to practice medicine,” he wrote in a recent paper that currently awaits publication.

Maru also argues that the country has already established standards of care, supported by the courts, and that telehealth has given providers a platform upon which to treat anyone in any location based on those standards.

“If the federal government and state governments support and see the benefits of telemedicine, should they not enact permanent solutions to reduce the barriers to the practice of interstate medicine," posits Maru.

“With modern medical education and certification standardized on a national level, why is it necessary to have state-specific medical licenses that only allow physicians to see patients located in a single state when there are patients all over the nation that need care? If a national standard of the care is the rule in most states, are state or local community standards even necessary to consider when evaluating malpractice concerns related to the interstate practice of medicine?”

Lastly, Maru points to two programs that allow providers to treat patients in any state:

“The time has come for a national solution that can reduce administrative burden while simultaneously increasing licensed physicians’ ability to care for patients without unnecessary geographic limitations,” Maru concludes. “There should be a single medical license approach recognized across all fifty states that allows physicians to practice interstate medicine without needing a medical license in each state.”

Among the many critics of the one-license-for all idea is the Alliance for Connected Care, which says the concept is nice, but not practical.

“While a single national license is a simple and elegant solution that we would love to have, it’s just not politically feasible in our current environment,” the group says. “A single federal licensure system could potentially undermine the state-based disciplinary authority and would be strongly opposed by many. This has been tried (Telemedicine for Medicare (TELE-MED) Act), and was aggressively opposed by the American Medical Association and others. We believe the path forward is for the federal government and states to work together on powerful, mutual recognition compacts.”

The Path Forward for Telehealth Licensure

As the nation tries to push away from the pandemic, both Congress and the federal government are under pressure to create a long-term telehealth policy that takes into account the successes seen in telehealth over the past two years. This would include reducing or eliminating barriers to telehealth adoption across state lines.

While licensure compacts, portability, national licensing and maintaining the status quo all have their fans and critics, nearly everyone agrees that something needs to be done to reduce the friction – there has to be an easier way for a provider to treat a patient who lives in another state via telehealth. 

Cybil Roehrenbeck, an attorney with the Hogan Lovells law firm who focuses on telehealth issues, says the best bet may be to stay the course for now and allow the licensure compacts and state partnerships to manage the market.

“Licensure is not just about telehealth,” she says. “The issue around states’ rights is the fundamental and core issue … and those states aren’t going to give up their rights.”

Roehrenbeck says she doesn’t think the federal government will step in and dictate licensure, either with a federal mandate or Congressional action. And most of the large health systems will steer clear of the issue because they can budget for licensing fees. 

“I just don’t see Congress stepping in there and telling states how to administrate licensure,” she says.

While some bills before Congress address telehealth licensure, much of the lobbying effort right now focuses on other emergency telehealth measures that should be made permanent – the elimination of geographic restriction on telehealth coverage, expanding the lists of providers able to use telehealth and services they can offer virtually, and coverage for audio-only telehealth, for example. 

Then again, some feel that Congress can take control of the situation by affecting change.

“Patients have long traveled across state lines for specialty care, but the COVID-19 pandemic has demonstrated that this care, particularly delivered through telehealth, can also help alleviate access issues in many other areas of health care,” the Alliance for Connected Car said in a January 2021 open letter to policymakers. “Looking beyond the public health emergency, one important way policymakers and health care regulators can permanently facilitate access to care is by allowing providers and patients to connect with each other regardless of their physical location.”