Real time: This category covers synchronous audio or video interaction—what most people actually consider to be telemedicine. All states cover this form of telemedicine, but some states, including Alaska, Maine, New Jersey and Oregon, reimburse for audio-only technology.
Legal & Regulatory Framework
Telemedicine is governed primarily by state laws and regulations, with layers of federal law regarding patient privacy under the Health Insurance Portability and Accountability Act (HIPAA), restrictions on the teleprescribing of controlled substances under the purview of the U.S. Drug Enforcement Administration (DEA), and service location limits under the Centers for Medicare & Medicaid Services (CMS).
State Laws
Medical licensure & corporate practice of medicine—To provide medical services, including telemedicine services, to a resident of a state, the treating physician is generally required to be licensed in that state. There is no comprehensive licensing scheme for telemedicine, so physicians must comply with licensure requirements in every state in which they seek to provide telemedicine services.
According to the American Telemedicine Association (ATA), 41 states have passed laws aimed at improving coverage and reimbursement of telehealth services since 2017. Thirty states have adopted the Federation of State Medical Boards’ Interstate Medical Licensure Compact, which allows for expedited licensure in the participating states.
Alternatively, six states, including Maryland and Virginia, have adopted laws for neighboring state reciprocity, and nine other states have created special telemedicine certificates that can be issued to out-of-state providers. These nine states are: Alabama, Louisiana, Minnesota, Nevada, New Mexico, Ohio, Oregon, Tennessee and Texas. Upon issuance, this certificate enables a provider to engage in telemedicine in accordance with the parameters governing such certificates.
An additional consideration is whether a state has a corporate practice of medicine prohibition, which generally prohibits corporations from practicing medicine or business entities from employing physicians to provide medical services. For example, in California, any business or management decisions that result in control over a physician’s decision making must be made by a licensed California physician and not by an unlicensed person or entity.
Telemedicine can be very expensive, and large corporations are generally in the best position to afford the resources required to provide telemedicine services. Even if there is no corporate practice of medicine prohibition in the state where the corporation is located, the state in which the telemedicine services are provided may have such a prohibition, which effectively precludes the corporation from operating in that state. If telemedicine services are provided by the corporation, it may be in violation of the law and subject to penalties—unless an exception to the law applies.
