MAG opposing measure to preempt state telemedicine laws

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The Medical Association of Georgia is one of nearly 50 state medical associations that signed a letter to Congressional leaders to express concern over federal telemedicine legislation that would “preempt state laws governing medical licensure, medical practice, and professional liability by changing the originating site of care from where the patient is located to where the physician is located.”

The American Medical Association reports that, “The National Defense Authorization Act for Fiscal Year 2017 (S. 2943) passed the United States Senate on June 14, 2016.  As passed, the bill contains a provision that would preempt state laws governing medical licensure, medical practice, professional liability, and reimbursement by altering the applicable state law from where the patient receives the medical services to the location of the physician, ostensibly to enable telemedicine across state lines for patients in the TRICARE program. [The specific provision is section 705(d), Enhancement of Use of Telehealth Services in Military Health System; Location of Care.]  This provision is not contained in the companion legislation that passed the U.S. House of Representatives on May 18, 2016.” 
AMA says that it has worked with the Federation of State Medical Boards (FSMB) to highlight how the legislation would threaten the “important and demonstrated patient safety protections [that are] provided by adherence to state licensure and medical practice laws where the patient receives services.” AMA/FSMB say…

– Both organizations strongly support adoption of telemedicine, and have sought to develop and implement policies, rules and mechanisms that would expand access to care via telemedicine in a safe and accountable manner. Since 2015, as an example, 17 states have enacted legislation to participate in the Interstate Medical Licensure Compact, a new pathway to expedite the licensing of qualified physicians seeking to practice medicine in multiple jurisdictions. Additional U.S. states and territories are expected to join the Compact in the years ahead.

– The Compact provides for the key component of regulation at the point of care where the patient is located – a fundamental principle of medical regulation that must remain in place – while dramatically streamlining the licensing process. It accomplishes the major goals that telemedicine advocates promote: faster licensure, reduced barriers, and a system that can be applied nationwide, creating an enhanced environment for multi-state practice.

– The practice of medicine occurs where the patient is located, rather than where the provider is located is patient-centered, time-tested and practice-proven. It ensures that state medical boards have the legal capacity and practical capability to regulate physicians treating patients within the borders of their state, and to attest that those physicians meet the qualifications necessary to safely practice medicine. Each state establishes its own licensing and medical practice standards, regulations, and laws that meet the needs of the individuals receiving care within the state’s borders.

– This legislative provision would compromise patient safety by making it exceedingly difficult and potentially impossible for patients and state medical boards where medical care is rendered to address improper or unprofessional care. The ability of patients, and other interested parties, to quickly and accurately identify and report concerns to the applicable state medical board of jurisdiction and actively support the medical board investigation will be hampered. Currently, patients and others may file a complaint with the state medical board where the medical care is rendered. Altering the applicable law to the state where the provider is located would place the burden solely on the patient to navigate through the complaint filing and investigatory process (once they have identified the state of licensure of the physician and applicable state medical practice laws) across one or more state lines.

– This provision raises constitutional questions and would create an ambiguous medical regulatory structure, as it is unclear if the provider must adhere to the Medical Practice Acts (laws and standards) of their state of licensure, or the state of the patient’s location. The latter would embroil patients, state medical boards, and health care providers in costly conflicts of law litigation ancillary to the issue of whether appropriate medical care was provided.

– This provision creates an inefficient and unworkable system where in theory each individual state board would be required to regulate medical practice across the nation, affecting 9.4 million TRICARE beneficiaries around the world. Yet, a state boards’ legal authority does not extend beyond the state – investigations and application of state medical practice laws stop at the border’s edge.

– The current fee structure of the state board licensing and renewal system allows state boards to use their limited resources to fund investigations and subsequent prosecutions of physicians suspected of unprofessional medical conduct in the state where the medical care was rendered. This proposal would create a significant and unsustainable financial burden on the state board where the physician is licensed, forcing the board to conduct its disciplinary proceedings and utilize their limited resources, at a much greater cost, to be able to conduct investigations in other states which would involve negotiations with state agencies and authorities where the physician is located.

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