State medical boards will likely continue to change policies regarding the legality of "practice" from outside the state, but I wanted to share with you the responses I have collected from a few states in the past few days. We will start with several assumptions that may not apply to other physicians, but will likely always apply to myself:
- Practice takes place where the patient is located and is governed by the laws of that jurisdiction.
- Patients reside in my state.
- Patients temporarily travel to states in which I am not licensed.
- Patients may need to contact me by telephone to ask for prescription orders or to discuss clinical matters such as symptoms, side effects, and dosing strategies.
- Patients may benefit from conducting a single contact via teleconference (eg, Skype) if traveling during a time when a visit would ordinarily occur in state. (As of now routine teleconference contacts will occur only alternating with in office contacts.
In this case the patient might actually be located on a vessel either docked in CA or in CA waters. In response to my inquiry of the CA board regarding these questions I received only a letter indicating that I would have to seek the advice of legal counsel.
The HI board responded the same day by email:
"We are in receipt of your message.
"Your patient may want to check with the pharmacy, but I believe the Pharmacy Board's laws allow pharmacists to fill one out of state prescription.
"With regard to your other two questions, the Hawaii board generally looks at the practice of medicine as occurring where the patient is. As the patient will be in Hawaii, the practice occurs here and so the physician should be licensed.
"However, this is an informal opinion and is not legally binding.
"Thank you for your inquiry.
Constance I. Cabral
Board of Medical Examiners"
I spoke with a lady at the NY board by telephone. She indicated that the board would likely consider a teleconference with a patient located in the state to be practicing without a license. When I asked her about ordinary telephone contact she asked me how anyone would know. But when I pressed her for a statement of policy she indicated that even telephone contact might be considered practice without a license.
I find it interesting that in CA and HI responses were couched as opinions. If provided in writing perhaps NY would have as well. Why can this not be stated as a matter of current policy? Perhaps the boards want to avoid any possibility of appearing to give a green light to, to what? Could it be that they just feel they must act tough but would never prosecute?
Telephone "practice" across state lines occurs routinely near state lines. Some states may have reciprocity agreements. But no physician should have to break the law to avoid malpractice, and patients in this country should be able to travel freely without concern that their physicians might not be available to them by phone, and better yet by teleconference, regardless of whether the physician bills them for the service.
The reality is that physicians break the law every day because they are unwilling to stand up to irrational regulations. It's just easier to go with the flow. These laws serve no purpose and should be changed. Perhaps the next time we practice without a license in a state where a patient is traveling we should turn ourselves in and see whether prosecution follows.
It may or may not be good that laws prohibit a physician located in state A from initiating and maintaining care of a patient never examined in person from state B. But every state, if not every country, should immediately enact laws to allow physician-patient contact by phone or teleconference when the patient travels to another state.