Telehealth Legislation / 1997 Report to House of Delegates

TELEHEALTH LEGISLATION -- 1997

BACKGROUND

The blending of health care and telecommunications technology is influencing the way providers, policy makers, and others are viewing the regulation of health care professionals. Further, the use of telecommunications technologies for the delivery of health care services or related health care activities -- telehealth -- represents a change in our approach to the delivery of such services to underserved populations. In the past the focus was on programs to enhance the workforce in underserved areas. In contrast, telehealth relies on technology to improve access to providers and resources located in a difference geographic site.

Expanding use of telehealth allows health care providers licensed in one state to provide consultations for patients located in a different state. A survey of 180 telehealth projects by the Council on Licensure, Enforcement and Regulation (CLEAR) found that nearly every medical and nursing specialty is being practiced via long distance. Other specialties as well are engaged in such practices. However, this delivery model raises several complex regulatory and reimbursement issues.

Licensure of health care professionals is currently a state-based system. Thus the practice of telehealth raises concerns regarding licensure and professional accountability, particularly relating to cross-state practice. In addition, the lack of reimbursement for telehealth services is seen as a barrier to the expansion of this practice.

LEGISLATIVE HISTORY

There are several issues related to telehealth around which state legislation is focused. The first issue of concern is the cost of such programs. While telehealth is touted to increase access and decrease the cost of care, a recently released study for the Office of Rural Health Policy found that the combination of high start-up costs, steep transmission fees and low volume made the typical electronic consultation an expensive session. However, anecdotal evidence indicates that once telehealth programs are in operation for several years, they can attract enough participation to bring down costs and improve access to care. Currently, hospitals are typical sources of funding. In addition, federal and state grants are also common sources of funding for telehealth programs.

Secondly, there is concern about state licensing of health practitioners who deliver services across state geographic boundaries. Recently, the Western Governors' Association called for a Uniform State Code for Telemedicine Licensure and Credentialing which would define telemedicine, simplify licensure, and address continuing medical education. The Federation of State Medical Boards has been studying issues related to practice across state lines since 1994. In 1996, the Federation proposed a "limited license" for use only in practicing medicine via electronic means across state boundaries. The American Medical Association opposed this concept. The National Council of State Boards of Nursing (NCSBN) has been developing a regulatory model that incorporates the characteristics of a multistate license. Such a license would be recognized nationally but enforced locally. NCSBN is expected to present this model in August at their Annual Meeting. Other groups such as the Council of Licensure, Enforcement and Regulation and the Interprofessional Workgroup on Health Professions are also studying this issue.

The federal government has also begun to take a serious look at telemedicine.The Telecommunications Reform Act of 1996charged the Department of Commerce and the Department of Health and Human Services and other appropriate agencies to submit a report analyzing telecommunications and its potential impact on the medical community. As a result, the Joint Working Group on Telemedicine (JWGT) was created. In the report, various licensure models that may be employed by the states were outlined. These approaches include: consulting exceptions; endorsement; mutual recognition; reciprocity; registration; limited licensure and national licensure.

The consulting exceptions allow out-of-state practitioners to practice in a state without obtaining licensure for the sole purpose of consulting. Most of these exceptions prohibit the unlicensed practitioner from opening an office or receiving phone calls within the state.

The endorsement model allows state licensing boards to issue licenses to health professionals licensed in other states who have equivalent licensing standards.

The mutual recognition model allows the licensing agencies in the participating states to voluntarily enter into an agreement to accept the policies and processes of licensure of a licensee's home state. This is the model currently being used throughout the European Community and Australia.

The reciprocity model allows states to enter into agreements provided that licensed practitioners in one state are given equal treatment and privileges in the visiting state without the need to obtain licensure from the visiting state.

The registration model would allow out-of-state practitioners to inform the appropriate authorities that they would like to practice in the state on a part-time basis. This model would hold the out-of-state practitioners accountable for any misconduct occurring in the state which they are registered.

The limited licensure model would limit the scope of practice rather than the time period that an out-of-state practitioner may have within the state.

Lastly, the national licensure model would require that a licensure system be implemented on the national level, thus disbanding the requirement for licensure in every state.

LEGISLATIVE ACTIVITY

As more research is conducted on existing telemedicine systems, both the private and public sector are learning how to take full advantage of the benefits that telemedicine has to offer to help improve the delivery of health care services throughout the country. Over the past several years, states have begun to address legal issues related to the practice of telehealth. Georgia was one of the first states to pass legislation addressing telehealth. Georgia has 60 medical sites serving hospitals, correctional institutions, a public health facility, and an ambulatory health center. The National Governors' Association recently identified the Georgia Statewide Academic Medical System as the largest learning and telehealth network in the world.

California appears to be a leader in this arena as well, having introduced legislation designating a state agency responsible for telemedicine in 1994. California enacted the Telemedicine Development Act of 1996which provides for licensure of out-of-state physicians, reimbursement for telemedicine services and oral and written patient consent for such services. In addition, the State Department of Health Services is to provide a report by January 1, 1999 to the legislature on the quality of health care provided by telemedicine.

Earlier this year, Governor Ed Schafer (North Dakota) was forced to cancel his plans to hosted a statewide conference on telemedicine due to flooding in the state. The Governor's Conference on Telemedicine: Exploring an Emerging Technology will feature experts on telemedicine technology and application.

Tennessee enacted legislation in 1996 creating special licenses to out-of-state physicians. Thus far, 19 states -- Alabama, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Maryland, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oregon, Rhode Island and Washington have introduced bills regarding the out-of state licensure of physicians. The Colorado and Maryland bills limit the amount of visits the out-of-state physician may have in one year without obtaining in-state licensure. A bill in Alabama as well as the bill in Maryland allows for the issuance of a "special purpose license," while a bill in North Dakota allows the issuance of a limited license. Bills in Ohio and Montana allow the issuance of a certificate to practice telemedicine across state lines. The Ohio bill does not require a certificate if the nonresident physician is consulting twelve or fewer times a year. Bills in Arkansas, Connecticut, Florida, Georgia, Mississippi, Nebraska, New Hampshire, North Carolina, Oregon and Rhode Island would require out-of-state physicians to be licensed within the state to practice medicine, but would exempt physicians serving on a consultant basis. The Illinois bill allows out-of state physicians from making a second opinion without obtaining a state medical license. The Washington bill allows an out-of-state physician to practice without a license in-state as long as the physician is sponsored by a physician licensed within the state.

Only a few states reimburse for telemedicine services. Ten of them -- Arkansas, California, Georgia, North Dakota, New Mexico, Montana, South Dakota, Utah, Virginia and West Virginia -- provide Medicaid reimbursement. In five states -- Georgia, Kansas, Louisiana, Minnesota and Pennsylvania -- other insurance coverage is available. Arizona, Oklahoma, Texas, Louisiana, Mississippi and Virginia introduced legislation this year to address reimbursement.

POLITICAL

The issue of telehealth is being driven by a multitude of constituencies, including legislators representing underserved populations who believe increased use of telehealth technology will increase access to health care services. Telehealth is defined as a tool for improving access to health care services and knowledge -- not a clinical specialty practice.

On the federal level, ANA has taken a strong leadership role -- not only on behalf of all nurses, but all health care providers. ANA has initiated two national coalitions:

  • Nursing Organizations Telehealth Committee charged with developing guidelines for nurses to utilize when using telehealth as a tool to practice nursing; and
  • Inter-Professional Perspectives on Telehealth Standards

ANA has endorsed a comprehensive telehealth initiative introduced into the U.S. Senate by Senator Kent Conrad (D-ND). This proposal includes legislative language and definition of telehealth which includes nurses as full practitioners and providers of telehealth.

ANA has identified many issues under the umbrella of telehealth which require further study including, but not limited to, nursing practice, ethical issues addressing confidentiality, international issues and practicing in a world without boundaries, workplace issues related to collective bargaining, economic concerns, and questions related to multi-state licensure. NCSBN has also taken a lead in the latter issue as it pertains to telehealth. NCSBN reports that increasingly questions are being asked of state boards regarding the definition of nursing practice via a telecommunication device.

State barriers to the practice of telehealth account for much of the attention the issue has recently received. The General Accounting Office states in their February 14, 1997 report, "The legal and regulatory barriers to implementing telemedicine activities are licensure issues, malpractice liability, privacy and security, and regulation of medical devices." Approximately 53 bills related to telemedicine have been introduced in 29 states during the 1997 state legislative sessions. The scope of the legislation ranges from licensure of out-of-state physicians to data collection and reimbursement issues.

As noted earlier in this report, many health care professions are providing services through electronic networks, however the majority of bills allow only physicians to provide and receive reimbursement for health care services delivered via electronic means. Although, nurses are specifically identified in some bills. Texas HB 2386 does provide for reimbursement for advanced practice nurses and legislation in New Mexico would appropriate funds for a nurse distance education program.

Secondly, the term telehealth is generally not defined in these bills. Arizona HB 2224, Oklahoma SB 48 and Texas HB 2033, however, does define telemedicine as the practice of health care delivery.

As state legislators and regulators struggle with the concept of developing polices that best serve the public, nurses must continue to be involved in the debate. The practice of telehealth is not limited to physicians. Nursing is an integral component of the health care delivery system and must be included in this emerging model of health care delivery.

(Further information on ANA's activities related to telehealth can be found in the House of Delegates Report, Status Report on Telenursing and Telehealth.)

TELEMEDICINE / TELEHEALTH
STATE LEGISLATION -- 1997

BILL NUMBER STATUS BILL SUMMARY
TELEHEALTH INITIATIVES
Alabama HB 341 4/08/97 Signed by the Governor Creates a special purpose license to practice medicine or osteopathy across state lines. Defines the practice of medicine to include the rendering of treatment to a patient located within the state by a physician located outside the state as a result of transmission of data by electronic means or other means from this state to such physician.
Alaska SCR 6 3/26/97 passed Senate; 4/30 97 passed House Recognizes the Alaska Telemedicine Project, its founding organizations and its leadership as the officially sanctioned telemedicine and telehealth project in the State.
Arizona HB 2224 4/11/97 signed by the Governor Defines telemedicine as the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data and education through interactive audio, video or data communications. Establishes patient rights.
Arkansas HB 1498 3/13/97 signed by the Governor Appropriates funds for distance learning and telemedicine network.
Arkansas HB 2023 4/14/97 signed by the Governor Defines the practice of medicine beyond state boundaries and provides exemptions for decisions regarding the denial or approval of coverage under any insurance or health maintenance organization plan or services not available in the state.
Arkansas SB 258; Arkansas SB 259 3/18/97 signed by the Governor; 3/17/97 signed by the Governor Appropriates funds to non-profit entities for the development of telemedicine network.
Colorado HB 1050 1/27/97 passed the House Allows for a physician licensed outside the state of Colorado, to render services within the state without obtaining a license to practice medicine from the state of Colorado, as long as it is limited to no more than twelve cases in any calendar year.
Connecticut HB 6876 2/27/97 introduced Defines telemedicine as the use of interactive audio, video or data communications, including store-and-forward technology, in the practice of medicine or surgery. Also provides that no special license is required for the practice of telemedcine.
Florida HB 1855;
Florida SB 1308		 4/2/97 introduced;
3/4/97 introduced		 Requires a state license for the practice of medicine via electronic means within state boundaries.
Georgia SB 107 4/14/97 signed by the Governor Amends the medical practice act requiring that anyone who practices through such electronic means shall be fully licensed to practice medicine in this state and shall be subject to regulation by the board. Allows exemptions for consultations. Also establishes patient rights.
Hawaii HB 1119 1/21/97 introduced Appropriates funds for fiscal years 1997-1999 for distance learning/electronic school.
Hawaii SB 512 3/4/97 passed Senate; 4/8/97 passed House Exempts physicians who provide consultation via electronic means from a limited and temporary license created by this legislation.
Illinois SB 314 3/14/97 passed Senate; 5/8/97 passed House Requires that physicians be licensed in the state except in the case of a physician providing a second opinion. Also requires the physician to be disciplined in Illinois if action arises.
Illinois HB 1342 4/14/97 passed House; 5/9/97 passed Senate Requires the Department of Public Health to study the feasibility of using telemedicine technology for individuals living in rural areas and homebound individuals.
Iowa SF 519 4/18/97 to Governor Defines authorized users of the Iowa Communications Network as licensed health professionals. The network may be used for telemedicine or related health care purposes.
Louisiana SB 503 4/8/97 passed Senate Increases the membership of the Coordinating Council on Telemedicine and Distance Education from 13 to 19 members.
Louisiana SB 500; Louisiana HB 785; Louisiana HB 821 5/21/97 passed Senate Provides for reimbursement for telemedicine services.
Maryland SB 93 02/17/97 reported unfavorably from Senate Committee Authorizes the State Board of Physician Quality Assurance to issue a special purpose license to practice medicine across state lines through electronic transmission.
Minnesota SB 438 02/10/97 introduced Supports cooperative efforts among hospitals to restructure the delivery of health care services towards outpatient care and develop telemedicine relationships.
Minnesota SB 1208 4/30/97 passed Senate; 5/9/97 passed House Authorizes the commissioner to award grants to be used by a hospital to establish a health provider cooperative, a telemedicine system or a rural health care system.
Mississippi HB 1504 02/07/97 died in committee Clarifies that physician services provided through telemedicine are fully reimbursable under the Medicaid program.
Mississippi SB 2378 02/07/97 died in committee Prohibits health plans from requiring face-to-face contact between patients and providers for purposes of reimbursement.
Mississippi SB 2389 3/25/97 signed by the Governor Defines the practice of medicine across state lines (rendering a medical opinion, rendering treatment). The physician must be licensed by the State Board of Medical Licensure unless he is providing a consultation.
Mississippi SB 2944 01/21/97 introduced Establishes an Office of Rural Health within the State Board of Health to promulgate rules, regulations, and collect data for the implementation of telemedicine practices.
Montana HB 513 02/10/97 introduced Provides that a physician may not practice telemedicine in this state without a telemedicine certificate. A telemedicine certificate authorizes an out-of-state physician to practice only telemedicine.
Nebraska L 452 5/9/97 signed by the Governor Defines those persons who may practice medicine and surgery through the use of electronic medium.
New Hampshire SB 170 03/13/97 failed to pass Senate Requires licensure of out-of-state physicians who provide care regular ongoing care through electronic communications.
New Mexico HB 361 03/16/97 passed House Appropriates funds for the telemedicine program and for the nurse distance education program.
North Carolina HB 814; North Carolina SB 780 4/7/97 introduced; 4/24/97 passed Senate Requires that nonresident physicians who treat patients in this state through the use of electronic or other mediums to be licensed in this state.
North Dakota HB 1015 2/20/97 passed House; 4/8/97 passed Senate; 4/29/97 Line-item vetoed Requires the legislative council to conduct a study on telemedicine. The council shall study the utilization of telemedicine in this and other states and the desirability of adopting any amendments to the professional licensing laws and other laws that will facilitate the development of telemedicine.
North Dakota HB 1165 02/07/97 failed to pass House Provides that the state board of medical examiners will issue a special purpose license to practice medicine across state lines to any physician licensed to practice medicine in any other state.
Ohio HB 193 2/18/97 introduced Provides that a physician licensed by another state who provides medical services in this state, either directly or through electronic means, must obtain a certificate to practice from the State Medical Board.
Oklahoma SB 48 5/19/97 signed by the Governor Defines telemedicine as the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, or exchange f medical education information by means of interactive audio, video or data communications. Requires patient consent prior to the delivery of health care via telemedicine.
Oregon SB 467 2/18/97 introduced Requires a license to practice medicine across state lines.
Rhode Island SB 663 4/30/97 passed Senate Requires a license to practice medicine as defined as the diagnosis or treatment through the use of interactive audio, video or data communications, including store-and-forward technology for persons within this state.
Texas HB 2017 5/7/97 passed House; 5/21/97 passed Senate Requires the development and implementation of a system to reimburse providers of services under the state Medicaid program for services performed using telemedicine.
Texas HB 2033 5/1/97 passed House; 5/22/97 passed Senate Defines telemedicine as the use of interactive audio, video, or other electronic media to deliver health care. The term does not include services performed using a telephone or facsimile machine. Prohibits a plan from excluding a service from coverage under the plan solely because the service is provided through telemedicine.
Texas HB 2386 5/7/97 passed House; 5/23/97 passed Senate Relates to reimbursement for certain medical consultations. In this bill, a "health professional" refers to advanced nurse practitioner, an allied health professional, a mental health professional, a physician or a physician assistant who is licensed in the state.
Virginia HJR 54 01/17/96 introduced Requires the Secretary of Administration and the Secretary of Health and Human Resources to develop a policy for considering reimbursement for telemedicine services by state health programs
Washington HB 1216 01/16/97 introduced Requires non-resident physicians providing direct care through tele-electronic means be sponsored by a physician licensed to practice and residing the state. The medical quality assurance commission may define the rule.
Washington HB 1627 01/31/97 introduced Appropriates funds for telemedicine with a completed report to the legislature by November 1, 1997.
NOTE: Iowa is addressing the issue of telehealth and distance learning through the regulatory process.

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