Telemedicine, Follow-Up Care and State Licensure: The Problem Illustrated
As the delivery of healthcare services adapts to the digital age, providers, payers and patients are gradually exploring telemedicine’s possibilities. Evidence that delivering certain routine services via telemedicine may increase patient access to care and decrease cost without sacrificing quality has only served to accelerate this trend.
One particular area would seem a natural candidate for telemedicine services: post-op follow-up care performed on a patient who returns home after receiving surgical care in a different state. The need for such care seems likely to grow, as patients are increasingly traveling across state lines in pursuit of high-quality care, especially surgical care. In many cases, large companies are even offering incentives to employees who receive certain types of procedures at a handful of designated “centers of excellence” throughout the country. However, conducting follow-up visits with such patients can often prove problematic, since archaic state licensure schemes severely restrict the types of interactions a physician can perform from out-of-state, even where the interaction involves routine services and an established patient.
Given that many physician-patient interactions—including many post-op follow-up visits—can be safely accomplished electronically, telemedicine’s potential to bridge the geographic gap between patient and provider seems obvious. However, despite attention from Congress, the AMA, medical practice insurers, and countless other organizations, telemedicine care across state lines has encountered a formidable obstacle: archaic state licensure schemes. While some states allow out-of-state physicians to practice telemedicine without an in-state license so long as the standard of care is met, most require an out-of-state physician to traverse a difficult, uncertain and sometimes cost-prohibitive path to conduct even the most routine visits via telemedicine. Failure to satisfy these licensure schemes can expose a physician to both civil and criminal penalties, irrespective of the quality of care she delivers via telemedicine.
Telemedicine, Follow-Up Care and State Licensure: Promising Developments
As the American Telemedicine Association’s recent rankings indicate, no state has adopted comprehensive reforms that allow out-of-state physicians to responsibly practice telemedicine without running afoul of state licensure requirements (in May of 2015, the ATA awarded no “A” grades in this category, while 38 states received a “C” or worse).  While the ATA report is unlikely to stir optimism among telemedicine’s proponents, the promising licensure developments occurring in a handful of states suggest that it is possible to effectively regulate the practice of medicine while simultaneously encouraging innovative telemedicine practices.  While a complete survey of telemedicine-promoting licensure exceptions is beyond the scope of this post, the following two provisions provide a useful starting point in the quest to promote telemedicine without sacrificing quality.
Safe Harbor #1: Telemedicine and Follow-Up Care with Established Patients
As mentioned above, many states—including Indiana, Illinois, and Ohio—permit physicians to conduct follow-up visits with established patients online. For example, if an Illinois resident underwent a surgical procedure in another state, he could complete his follow-up visit with a physician thousands of miles away from the comfort of his kitchen. In addition to eliminating the cost and hassle of having to travel thousands of miles for a routine visit, this provision promotes patient choice by empowering patients to select the best providers for their procedures, rather than simply limiting patient choice by physician geography.  While some states build temporal (follow-up care can only be conducted via telemedicine within one year of the last in-person visit) and physical encounter (follow-up care can only be conducted via telemedicine if the physician-patient relationship was established via an in-person visit) limitations into this safe harbor, it nonetheless remains an important tool to ensure that patients can receive—and physicians can deliver—high-quality care remotely without running afoul of licensure restrictions.
 Safe Harbor #2: The Infrequent Practice of Telemedicine           
In some states, an out-of-state physician is not subject to licensure if she treats patients infrequently. While exceptions to licensure for infrequent treatment have long-existed, at least one state—Minnesota—has made it clear that such exceptions protect telemedicine practitioners and their patients. Specifically, Minnesota’s telemedicine statute provides that an out-of-state physician who holds a valid license to practice medicine in another state need not possess a Minnesota license—nor even register with the Minnesota Board—if she provides telemedicine services on an “irregular or infrequent basis,” which is defined as less than once per month or to fewer than ten patients annually.
Although a step forward for telemedicine, this provision has noteworthy limitations. A physician—or her employer—would need to ensure that a system is in place to notify the physician that she is approaching her allotted number of visits in a given state. Such a regulatory burden would be especially onerous on physicians who have a sizeable telemedicine practice (or patients who reside in states with a large pool of telemedicine recipients). Nonetheless, for providers that practice (and patient populations that consume) telemedicine services only occasionally, infrequency exceptions provide a potentially useful means of ensuring compliance with state licensure schemes.           
The intersection between the out-of-state practice of telemedicine and licensure requirements is likely to receive increased scrutiny, as stakeholders pursue novel methods of remote interaction. Squire Patton Boggs’ regulatory experts are available to assist both providers and payers in availing themselves of telemedicine’s considerable potential.