Telehealth: Where the Patient Is, and Which License Applies

One proposition drives this area. The practice of a licensed profession occurs where the patient is located at the time of the encounter, not where the clinician is sitting. A physician in one state treating a patient in another is practicing in the patient's state and needs that state's license. Unlicensed practice is a criminal offense in most states and an independent ground for discipline in the state where the clinician is licensed.

The rule and what it reaches

Because location fixes the practice, it also fixes almost everything else. The patient's state supplies the standard of care, the informed consent requirements, the rules on modality including any limits on audio-only encounters, the prescribing rules, the recordkeeping duties and the disciplinary forum. A clinician can be entirely compliant at home and in violation at the far end of the same call.

The rule is stated in state medical practice acts and board regulations rather than in one federal source, and the wording varies. Some states define telemedicine expressly and locate it at the patient's site. Others reach the same result through the general definition of practice. A few carve out a registration or special-purpose license for out-of-state clinicians serving their residents remotely.

Two different compact designs

Compacts are the standard answer and they are not one thing. The physician compact creates an expedited pathway rather than a single credential. A physician designates a state of principal license, satisfies eligibility criteria that are considerably stricter than ordinary licensure, and then obtains full licenses in other member states quickly. The result is a portfolio of licenses, each renewed and paid for separately.

The nursing compact takes the opposite approach. A nurse whose primary state of residence is a member state holds a multistate license carrying the privilege to practice in other member states, subject to each state's practice rules. One license, many places. Psychology, physical therapy, speech-language pathology, counseling and emergency medical services each have compacts of their own, and the design of each has to be read rather than assumed.

The exceptions that exist outside the compacts

Most states permit an out-of-state physician to consult with an in-state licensed physician on an occasional or irregular basis without obtaining a license. The exception is narrower than it reads. It usually requires that the in-state physician retain responsibility for the patient, that the consultation be genuinely episodic, and that the out-of-state physician not hold themselves out as available to the state's residents.

Two federal overrides operate independently of state law. Covered practitioners in the veterans health system may treat beneficiaries across state lines regardless of where either party is located, and a parallel provision covers military health system practitioners. Those overrides attach to the employment and the covered population, not to the individual, so they do not travel to private practice.

Two questions licensure does not answer

Prescribing controlled substances is governed by a separate federal scheme. A practitioner who prescribes a controlled substance by means of the internet must generally have conducted at least one in-person medical evaluation, unless the encounter falls within the statutory definition of the practice of telemedicine, which enumerates specific circumstances rather than describing remote care generally. Registration is also location-based, with separate registration required for each principal place of business where controlled substances are dispensed.

Payment is a third question. Federal payment for a remote service depends on conditions of its own, including that the practitioner be authorized to furnish the service under the law of the state where the service is furnished, and that the practitioner be enrolled. Enrollment records list practice locations, so adding remote service into a new state can create a reporting obligation under provider enrollment and revalidation that clinicians rarely anticipate.

What to settle before the first appointment

Four items decide whether a remote service line is defensible. Which states patients will be located in, and what each requires. Which entity bills, which matters because the routes in reassignment of benefits and who may bill depend on the entity's own enrollment. Whether the platform and its vendors are handling records within the permissions described in the permitted uses of health information. And whether the facility, if there is one, holds the licenses examined in the survey and deficiency process at every site involved.

The recurring failure is scale without mapping. A practice adds patients in a neighboring state, then another, then discovers that a board in the fourth has opened an unlicensed practice matter that must be reported on every future licensure application. Nothing about this area is forgiving of expansion first and compliance afterward, because the disclosure obligations are permanent.