Congress could regulate telemedicine across state lines as interstate commerce and establish the “place of service” of a telehealth visit as the location of the clinician, not the location of the patient.5 This definition would allow physicians to provide telehealth services if licensed by the state from which they would conduct telehealth visits. Such legislative action would not override state licensure or insurance regulations but would increase access to telehealth services by removing state licensing as a barrier.
State-based medical licensing is inherently linked to state-based consumer protection, including oversight by state licensing boards and the recourse of malpractice litigation in state courts. Therefore, if telemedicine were regulated as interstate commerce, Congress would need to provide a framework for consumer protections, in particular to guard against states protecting the interests of in-state physicians against claims from out-of-state telehealth patients. For example, Congress could decide that a physician’s home state medical board would be responsible for disciplinary investigations, while the state in which the patient lives would be the jurisdiction for malpractice litigation.
Author(s): Samyukta Mullangi, MD, MBA; Mohit Agrawal, MS, MBA; Kevin Schulman, MD
Publication Date: 13 January 2021
Publication Site: JAMA