[Congressional Record Volume 141, Number 109 (Friday, June 30, 1995)]
[Extensions of Remarks]
[Pages E1392-E1393]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


   BRING TELEMEDICINE TECHNOL- OGY TO THE AMERICAN PEOPLE

                                 ______


                             HON. RON WYDEN

                               of oregon

                    in the house of representatives

                          Friday, June 30, 1995
  Mr. WYDEN. Mr. Speaker, the House will consider H.R. 1555, the 
Communications Act of 1995 after the Fourth of July district work 
period.
  If done properly, telecommunications legislation will open the doors 
to radical advances in technology for our constituents. In reshaping 
America's telecommunications laws, the Congress must consider as many 
potential applications of telecommunications technology as possible. 
After all, it's been 60 years since the last rewrite to 
telecommunications law.
  During Commerce Committee consideration of H.R. 1555, the 
Communications Act of 1995, I raised the issue of telemedicine in an 
effort to expand the use and development of this exciting health care 
technology. Telemedicine is a diverse collection of technologies and 
clinical applications. The defining aspect of telemedicine is the use 
of electronic signals to transfer information from one site to another. 
Telemedicine's potential is immense; including for rural care, 
emergency care, home care, medical data management, and medical 
education.
  I offered and withdrew an amendment to allow licensed physicians in 
one State to conduct consultations with licensed health care 
practitioners in another State. I withdrew the amendment at the request 
of Members who sought additional time to explore the issue with the 
objective of crafting a bipartisan floor amendment.
  Bipartisan discussions continue today. It remains my objective, 
working with colleagues from both sides of the aisle, to produce 
bipartisan legislation to bring telemedicine's many benefits across 
State lines to the American public.
  I call the attention of my colleagues to the report printed below 
titled, ``Telemedicine and State Licensure.'' The report outlines 
current problems facing telemedicine and the need for a bipartisan 
solution.
  H.R. 1555, the Communications Act of 1995 is our opportunity to free 
telemedicine from the regulatory morass which threatens to keep this 
technology from the American people.
The American Telemedicine Association--Telemedicine and State Licensure


                              Introduction

       The primary purpose of telemedicine is to give all citizens 
     immediate access to the appropriate level of medical care as 
     disease or trauma requires. Currently, each state must 
     license each physician or dentist who desires to practice 
     medicine within its borders. This mode of licensure, while 
     appropriate for practices limited by state boundaries, unduly 
     constricts the practice of telemedicine. As a result, medical 
     services today stops at state boundaries. American consumers 
     are blocked from accessing medical care available in other 
     states absent their ability to travel away from their own 
     homes and communities.
       The challenge facing all concerned with advancing medicine, 
     and the sincere intent of our effort, is to preserve the 
     credentializing and monitoring efforts of each state while 
     providing instant and immediate access to appropriate levels 
     of care where not otherwise available.


     The Current State of Physician Licensure in the United States

       In some states, there are limited exceptions to the rule 
     that a physician or dentist must possess a license in each 
     state to which he practices medicine. Statutory 
     ``consultation exceptions'' allow an out-of-state physician 
     or dentist to enter a state to see a patient at the behest 
     (and in the presence) of a locally licensed physician or 
     dentist. However, consultations are often required to be 
     limited in duration, and a number of states which possess 
     them are acting to close them for telemedicine practitioners. 
     In 1995, Colorado, South Dakota, and Texas have considered 
     amendments to their consultation statutes prohibiting out-of-
     state telemedicine practitioners from ``entering'' without 
     being licensed in their state. Utah repealed its consultation 
     exception effective in 1993, and the Kansas Board of Healing 
     Arts passed a regulation (which conflicts with its statutory 
     consultation exception) which requires out-of-state 
     telemedicine practitioners to be licensed in Kansas.
       Additionally, a number of states prohibit out-of-state 
     consultants from establishing regularly used hospital 
     connections. If consultants cannot use telemedical facilities 
     at out-of-state hospitals, this limits the availability of
      specialized healthcare to underserved areas. The 
     ``consultation exceptions'' are simply not useful or 
     dependable for the future of telemedicine. They are easily 
     amended to exclude telemedicine practitioners, they 
     require the presence of a locally licensed physician 
     (which may not always be possible), and only one-half of 
     the states possess exceptions broad enough to be used by 
     telemedicine consultants.
       While some have argued that the distant patient is 
     ``transported'' to the physician or dentist via 
     telecommunications, this is a weak legal argument unlikely to 
     stand up in trial. It is instead probable that a majority of 
     state courts would find that a telemedicine practitioner is 
     practicing medicine in the patient's state. If the 
     telemedicine practitioner is not licensed in the patient's 
     state, this would have an extremely negative impact upon the 
     physician's malpractice liability, malpractice insurance 
     coverage, exposure to criminal prosecution, and potential 
     loss of licensure in his home state as well as remedial legal 
     recourse for an injured patient.
       Licensure by reciprocity and licensure by endorsement have 
     long served physicians or dentists who wished to be licensed 
     in two or three states. However, reciprocity and endorsement 
     fall short of the needs of physicians or dentists practicing 
     via a telecommunications network. Today, reciprocity is 
     rarely used, and licensure by endorsement still requires that 
     applications, personal interviews, fees, pictures, school and 
     hospital records, and even letters from locally licensed 
     physicians or dentists be submitted to each state where a 
     license is desired. Each state's requirements are minutely 
     different, and the expense and time involved in receiving 
     licensure by endorsement in more than one or two states makes 
     it prohibitive, if not impossible, to achieve.


                Is Individual State Licensure Required?

       The Tenth Amendment of the U.S.Constitution reserves to the 
     states the power to protect the health and safety of state 
     citizens, hence the ability of the states to regulate and 
     license healthcare providers. Almost every state statutorily 
     defines the practice of medicine, and a typical statute 
     reads:
       ``The practice of medicine means . . . to diagnose, treat, 
     correct, advise or prescribe for any human disease, ailment, 
     injury, infirmity, deformity, pain or other condition, 
     physical or mental, real or imaginary, by any means or 
     instrumentality.''
       It appears that despite the presence of a primary/referring 
     physician, the physician consulting via telemedicine who 
     attempts to diagnose the patient is practicing medicine where 
     the patient is located. The phrase ``by any means or 
     instrumentality,'' while not common to all states, frequently 
     appears in state definitions. Courts would determine that 
     telemedicine was
      the ``instrumentality'' used to reach a diagnosis, and find 
     that the state definitions bring telemedicine consultants 
     under their jurisdiction. States guard their power to 
     regulate for health and safety purposes, and the U.S. 
     Supreme Court has upheld their ability to do so.2 
     Therefore, it is unlikely that state courts would 
     surrender jurisdiction over an out-of-state physician or 
     dentist who practiced medicine via telecommunications on a 
     patient located in their state. Courts will find that the 
     medicine was being practiced where the patient was 
     located, and therefore the physician or dentist should 
     have been licensed in the patient's state. Such a finding 
     would have a chilling effect on telemedicine, since 
     licensure cannot be obtained in every state by every 
     specialist who participates in even one consultation.
       The means for attaining these goals are to have the patient 
     under the care of a physician licensed in the same state of 
     residence but allowing consultative evaluations of the 
     patient by specialists licensed in another state. Other 
     health care professionals, such as physician assistants, must 
     be under the supervision of a licensed physician.


          is interstate transmission of telemedicine required?

       Just as the technology for the transmission of sound and 
     images has witnessed revolutionary change, so too has 
     medicine. These advances in telecommunications and medicine 
     have made advanced medical care available where not thought 
     possible before. Today, there are compelling needs to use 
     interstate transmission of telemedicine from medical, social 
     welfare, and economic perspectives:
       The unpredictable immediacy of eruptions of disease or 
     trauma may command the services of unpredictable types of 
     specialists requiring licensure reciprocity in all 50 states. 
     Epidemic outbreak of disease is not limited to state 
     boundaries. The interstate mobility of specialty expertise is 
     needed throughout the United States to meet the demands for 
     combating injury or illness wherever and whenever it may 
     occur.
       Medicine has witnessed the emergence of super-specialized 
     medical care centers in numerous critical areas. These 
     centers are located in regional tertiary care facilities 
     serving multi-state areas. Receiving medical attention 
     through these centers currently requires the transport of 
     most referred patients out of state. In addition, the lack of 
     proper recuperative care in their home community after a 
     patient returns home has prohibited the patient from 
     returning home sooner. The development of telemedical 

[[Page E1393]]
     links to local primary care facilities will enable many patients to 
     remain in-state under the primary responsibility of 
     physicians or dentists licensed in their home state. The 
     development of telemedical links to specialty care centers 
     can reduce the cost of transport and can lead to substantial 
     reductions in the costs of patient care.
       Developing metropolitan-wide systems of care for many 
     cities also requires crossing one or two state boundaries. 
     There are 25 major metropolitan areas in the United States 
     that include more than one state. In each of these areas, 
     state licensing requirements effectively limit the ability of 
     physicians or dentists and other health care practitioners to 
     serve the health care needs, via metropolitan wide 
     telemedical systems, of the population base residing in their 
     own communities. This limitation can lead to great 
     disparities in access to health care due to the consumer's 
     place of residence.
       The widespread shortage of health professionals in many 
     parts of rural America has long been recognized as a critical 
     public policy issue. In many cases, access to health care 
     could be greatly improved with the development of telemedical 
     links with health facilities located in nearby states.


                               conclusion

       Statutes are being considered among the states which would 
     require out-of-state physicians or dentists treating patients 
     across state lines via telecommunications to possess licenses 
     in the state ``entered.'' Already in the vast majority of 
     states the telemedicine practitioner would be considered to 
     be practicing medicine upon a patient located there, thus 
     providing the patient's state with jurisdiction over any 
     malpractice action. Additionally, malpractice insurance 
     coverage is generally predicated upon the physician being 
     licensed where he practices. In other words, a physician sued 
     for malpracticing via telemedicine in a state where he is not 
     licensed might find himself without coverage, as well as 
     responsible for his own defense costs. Failure to possess a 
     state license would be used to establish negligence upon the 
     part of the consulting physician. Criminal prosecution for 
     practicing without a license could result, and the 
     physician's home state could institute disciplinary action 
     against him for his actions in the distant state. 
     Telemedicine possesses incredible potential to increase 
     healthcare accessibility, but is severely hampered by legal 
     impediments of which licensure is one of the most obvious. 
     Fortunately, licensure problems have the greatest potential 
     to be alleviated by the passage of statutes aimed at 
     addressing these issues.
       Emerging from these careful considerations is the need to 
     preserve the credentializing and monitoring efforts of each 
     state while providing instant and immediate access to 
     appropriate levels of care where not otherwise available. 
     Such actions should allow for immediate response to instances 
     of disease and trauma while securing for each state and its 
     citizens the continuance of the credentializing and 
     monitoring of quality within its boundaries with additional 
     specialized back-up as needed.


                               footnotes

     \1\ALA. CODE Sec. 34-24-50 (1975).
     \2\Geiger v. Jenkins, 316 F.Supp. 370 (N.D. Ga. 1970), aff'd, 
     401 U.S. 985, 91 S.Ct. 1236, 28 L.Ed. 2D 525 (1971).
     

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