(A version of this Health Alert was published by Forbes.)
Telemedicine, whereby physicians use email, phone, text, or video for prescribing and consultations, is growing rapidly. Seeking to encourage faster uptake of telemedicine, many well-intentioned parties are prodding Congress to take actions which will likely have harmful unintended consequences.
So far, Congress has done well. With respect to regulating actual devices, the 21st Century Cures Act, passed by the House in 2015 with overwhelming bipartisan support, is forward thinking. If passed into law, the policies it would implement would lead to a responsible and responsive regulatory environment for mobile health apps.
However, there are other areas in which a Congressional take-over would do more harm than good. In recent testimony to the House Energy & Commerce Committee’s Subcomittee on Commerce, Manufacturing and Trade, I encouraged Congress to First, Do No Digital Harm. Two of the most important areas of risk are federal interference in the practice of medicine and how Medicare pays for telemedicine.
State Licensing of Physicians. Historically, the practice of medicine has been regulated by the states. As telehealth has emerged, this has led some interested parties to conclude state licensing is (to some degree) obsolete. If technology permits a radiologist in Texas to read an image of a patient taken in any state, should that radiologist have to be licensed in every state? A short cut to solve this problem would appear to be to legislate a federal “safe harbor” for Medicare patients.
Writing in the Wall Street Journal, Professor Shirley Svorny of California State University, Northridge, and the Cato Institute argues that Congress should use the power granted by the U.S. Constitution’s Commerce Clause to pre-empt states’ historical power to regulate physicians’ scope of practice (“Telemedicine Runs Into Crony Doctoring” Wall Street Journal, July 22, 2016).
Professor Svorny urges Congress to legislate interstate portability of licensure. The state where a physician practices, not where the patient stands (or sits or lies) would be the locus of regulatory control. That is, Idaho would lose its sovereign power to regulate New York-licensed physicians delivering telemedicine to Idaho patients. This would not actually increase liberty. In the vignette described above, Congress would take away the sovereign power of the Idaho legislature and give it to the New York legislature! It makes for a confounded federalism.
Could Congress really limit itself to legislating portability of physician licensure? At least one other issue would (legitimately) have to be brought into the mix: Medical malpractice, which is governed by state law. Once such a bill had made it through the countless hours of committee hearings and amendments require to pass any law, we would likely end up with a law a few hundred pages long that would require a new federal agency to administer and regulate.
Further, states appear to be addressing the problem. The American Telemedicine Association (ATA) produces a 50-state survey of telemedicine regulation. In its 2016 edition, it noted “twenty states averaged the highest composite grade suggesting a supportive policy landscape that accommodates telemedicine adoption and usage.” Although the trend is not uniformly positive, it is better to allow states to adopt, adapt, and improve appropriate regulations while learning from each other.
Further, the Federation of State Medical Boards has established an Interstate Medical Licensure Compact. This approach preserves state sovereignty by allowing physicians licensed in any state belonging to the compact to practice in all states. Professor Svorny dismisses the compact. Nevertheless, it now has 17 states signed up, and legislation pending in nine more.
Medicare Payment for Telemedicine. “Parity” refers to having the same coverage for a medical service whether delivered in person or via telemedicine. Unfortunately, the notion of “parity” which governs advocacy for telemedicine reimbursement will not lead to cost reductions. There is little doubt telemedicine can often be delivered at significantly lower cost than in-person visits. However, just adding a bunch more billing codes to current list of Soviet-style administered prices is unlikely to save Medicare money.
Instead, Medicare must give up its futile efforts to determine fees for every single procedure a physician executes, whether in person or remotely. Instead, the rapid adoption of telemedicine should be exploited for opportunities where taxpayers, patients, and providers are all rewarded for reducing costs below those determined in the current system.
U.S. health care is in dire need of disruption. Success will be determined as much by what Congress restrains from doing, as much as what it does.
Do you have an idea of how the compact functions? What happens if one member of the pact decides to remove a physician’s license. Is that license then removed from everyone in the compact? Is license revocation a state action or a compact action?
Retirement states, at least in the past, used to worry that they would attract too many newly retired physicians that would make it more difficult to attract younger doctors.
Hi John,
I have been lecturing on telemedicine for over 25 years.
For that entire period the issue of state boundaries has been at the forefront.
In more recent years, the issue of international boundaries has arisen. For example, many reputable hospitals now use radiology services in India and other offshore areas, especially for overnight reads.
For many years, I have advised telemedicine physicians and telemedicine companies on licensure. The rule is that the physician must be licensed in the state where the patient contacts the teledoctor.
This has led telephysicians to get licenses in many states.(The ideal is 15+, and the greatest value to the telemedicine company is if the doctor is licensed in more than half the states.)
Each state has different licensure requirements. As a result, it takes significant physician time to process the applications and reapplications in each jurisdiction. These administrative hours are uncompensated for the physician (and for the physician’s employer).
The cost of licensing, while nominal in each state, mounts up when multiplied by the number of licenses each doctor must hold. But the hidden costs go far beyond the annual fee. It takes even more time and money for the physician to keep up with the continuing education requirements, which often differ from state to state.
And God help the telephysician who faces a malpractice judgement or settlement that must be reported to the Data Bank. All of a sudden that doctor faces potential disciplinary investigations by state medical boards everywhere he or she holds a license. These investigations (even if no discipline is imposed) can cost tens of thousands of dollars each to defend.
There is no question, therefore, that we have to re-think licensure and regulation for telephysicians.
That being said, I am strongly opposed to the notion that the federal government should butt in to medical licensure. Leaving aside my personal philosophy about expanding federal regulatory power, it makes no sense to have the federal government “pre-empt” licensure only for federally funded patients, while leaving in place state regulation for all other patients. Such a solution only doubles down on the amount of regulation, cost and inefficiency. Most importantly, it will not improve patient care, and–as you point out–will not necessarily lower the cost of care.
The function of licensing is to create minimum standards of quality and to create state-supervised accountability for medical services rendered to patients treated within the state’s borders. This is, and should be, a local issue.
The answer which is evolving, is to standardize the measures for licensing telephysicians. State boards can then hold physicians accountable for their training, their experience and for the rendition of care within its borders.
For efficiency’s sake, I have even advocated that state boards consolidate their investigations of multi-state license holders. So if a doctor holds licenses in many states, he or she would have to defend only one investigation and not face each medical board serially. This would lower the cost both for the boards and for the physician.
In sum, the idea of the federal government coopting the licensure is not the best answer to promote telemedicine. The answer is to promote interstate cooperation and standardization. This is the solution that is rapidly gaining favor amongst policy makers.
(Unfortunately we have seen a few state boards try to enact local anti-competitive measures to protect their state’s doctors from out-of-state telephysicians. To the extent these local regulations have been enacted by physician-dominated state medical boards, they will be increasingly scrutinized under the anti-trust laws per the Supreme Court’s ruling in the North Carolian dental board case.)
On the separate subject of professional liability, malpractice laws create their own form of “accountability.” The system is massively inefficient and indisputably drives up health care costs by billions of dollars each year.
As one of the authors of the California malpractice reforms, I cannot emphasize too strongly the difference in malpractice laws from state to state, and as a result the difference in malpractice underwriting and premiums.
In this area, there is a need for federal intervention. States are hide-bound by a small lobby of plaintiff’s lawyers who systematically block logical tort reform.
In California we have had over 40 years of the lowest malpractice premiums in the country. And the state just voted down changing our reforms. What further proof do other legislatures want?
As a country we have to do everything we can to lower costs. Reforming the malpractice system is a no-brainer, and it is in the interests of the federal government to step in.Congress has already done it for federally qualified health clinics. The legislation extending tort reforms nationally has been drafted for years and years. There should be no further delay.
Finally, your essay does not address the explosions of health care apps and wearable devices that are revolutionizing remote monitoring. These innovations,for the most part, are astounding advances that can greatly improve care. For example, we are now able to set up a remote hospital bed for recovery from most surgeries in the patient’s living room. With remote monitoring lowering the cost of nursing care, studies show we can obtain 1/3 lower cost, 1/3 fewer complications and 1/3 less recovery time and untold greater patient satisfactin. Likewise telemetry can track patients with chronic disease and monitor their care to assure lower costs and better outcomes. The miniaturization and geometrically increasing power of telemetric devices are giving a new definition to digital health. And to think, not to long ago, the phrase “digital health” usually followed the words, “Bend over.”
We are living in a very exciting time for medicine. If we are going to get through the health care crisis caused by the Baby Geezers, we must innovate and encourage progress.
In our digital age, we need to be realistic about the obsolence of political boundaries. Let’s have states’ medical boards cooperate on licensure of telemedicne, but have the federal government step in to fix the intractable logjam in tort reform.
I would be happy to speak to any groups wanting more information on these subjects.
Cheers,
Charlie Bond
“we must innovate and encourage progress”
Charlie, are you are saying it would be a mistake for government to intervene in the medical technology explosion? That this is precisely the moment government should stay largely uninvolved (other than a few places such as you mention e.g., telemedicine licensing)?
If so, I agree.
One thing governments do well is spend taxpayer money. But government spending decisions are decided politically and mostly by looking to the past. No assurance of rationality there. Yet medical innovation (and everything else) is in the future. Anyway, if all of human history is a guide, government involvement in any private enterprise tends to stifle innovation. That usually amounts to crossing the streams. As Egon Spengler put it, “That would be bad”.
Charlie,
Well written essay. Thank you for the time and effort you are putting into this much needed area of innovation.
Thank you. I’ve addressed apps in many articles and can only deal with one issue in a Forbes column of circa 700 words. I thought it was time to get back to the question of licensing.
So if the server that’s processing the telemedicine and physician him or herself is located outside the US, are they still susceptible to malpractice judgements or can they go “naked” (wo malpractice insurance)?