- Email: [email protected]
Interstate dermatopathology interpretations—50 separate licenses?
CURRENT
ISSUES
Interstate dermatopathology interpretations— 50 separate licenses? Thomas George Olsen, MD,a Theresa Ann Feeser, MBA,b and Peter Leon Jenkins, JDc Dayton, Ohio The increasing bureaucracy of health care has had a serious negative impact on physicians and patients for the last fifteen years. We report an example of this trend involving the interstate interpretation of dermatopathology specimens, which resulted in a significant interruption of diagnostic services to a large number of dermatologists. Temporary and long term solutions are discussed with the hope that dialogue and political consensus-building can bring resolution to the problem. (J Am Acad Dermatol 2004;51:454-7.)
U
ntil recently, dermatopathologists have assumed that being licensed to practice medicine in the state where the diagnostic service is rendered, as well as obtaining laboratory certification under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), allowed them to provide anatomic pathology services to physicians nationwide. However, because of the rapid growth of telemedicine over the last decade, many states have begun to regulate the interstate practice of medicine (Table I; available online only at www.eblue.org). Unfortunately, some of these states have defined the interstate practice of medicine to include the diagnosis of a patient by electronic or any other means. Connecticut, for example, requires out-of-state physicians to obtain a Connecticut medical license if, through interstate commerce, they provide Connecticut residents with ‘‘diagnostic or treatment services, including primary diagnosis of pathology specimens, slides or images. . .’’1 The implications of this juxtaposition are considerable, potentially requiring dermatopathologists to acquire and maintain multiple medical licenses in order to comply with the various state laws. We report a recent incident whereby an Ohio medical license was insufficient to provide an interpretation on a skin biopsy taken from a patient residing in North Carolina. The situation led to a legal
From the Division of Dermatology, Wright State University School of Medicine,a Dermatopathology Laboratory of Central States,b and Corporate and Health Care Law, Coolidge, Wall Womsley and Lombard, Co. L.P.A.c Funding sources: None. Conflicts of interest: None identified. Reprint requests: Thomas G. Olsen, MD, 7835 Paragon Rd, Dayton, OH 45459. E-mail: [email protected]. 0190-9622/$30.00 ª 2004 by the American Academy of Dermatology, Inc. doi:10.1016/j.jaad.2004.03.041
454
review of the medical licensure statutes in every state and several US territories. As a part of the review, the penalties for violating the licensure statutes were examined, and conclusions were drawn as to whether additional licensure is necessary to provide interpretations for out of state pathological specimens. It is our intention to: (1) raise awareness of the problem; (2) provide information to colleagues and laboratories; and (3) establish a dialogue to secure legislative relief.
BACKGROUND AND CASE REPORT The dermatopathology laboratory (the ‘‘Laboratory’’) is located in Ohio and has prepared slides and provided interpretations to dermatologists, plastic surgeons, podiatrists, otolaryngologists, ophthalmologists, and generalists since 1984. The operating position has been that a valid CLIA license and valid state medical license allowed its physicians to provide dermatopathology services nationwide without the need for additional licensure by state medical boards. For the last twelve years, the Laboratory has also maintained a New York State laboratory certification. New York requires laboratories that provide services to New York residents to comply with state regulations and inspection requirements. Additionally, for the last six years, the Laboratory has received accreditation by the College of American Pathologists (CAP), an accrediting body recognized by the federal government as being equal to or more stringent than CLIA. The Laboratory has also advocated the ‘‘consultant of choice’’ theme, as drafted and endorsed by the American Society of Dermatopathology (ASDP), and the American Academy of Dermatology Association (AADA), whereby physicians should be able to send their specimens to the consultant of their choice.2 Recently, a skin biopsy from a patient of a North Carolina dermatologist was sent to the Laboratory for
J AM ACAD DERMATOL VOLUME 51, NUMBER 3
preparation and interpretation. A written report was then returned to the dermatologist in North Carolina who discussed the results with the patient. The patient, who was employed by a North Carolina laboratory, was concerned and upset that the biopsy was not submitted to a laboratory in North Carolina. Subsequently, the patient filed a formal complaint to the North Carolina Medical Board who then forwarded it to the North Carolina dermatologist. The sole basis for this complaint was the fact that the physician at the Laboratory did not have a North Carolina medical license. There were no allegations or concerns regarding the quality of the interpretation. North Carolina statutes require that any physician practicing medicine in North Carolina who does not meet one of the listed exceptions must obtain a valid North Carolina medical license, even if the physician resides in and has a valid medical license in another state.3 One of the listed exceptions allows an out-ofstate physician to practice without obtaining a North Carolina license if they come into North Carolina ‘‘either in person or by use of any electronic or other mediums, on an irregular basis, to consult with a resident registered physician.’’4 Because this exception does not clearly define what constitutes irregular practice, the Laboratory made the decision to discontinue interpretive services in North Carolina until its physicians could obtain licensure in North Carolina, a 90- to 160-day process. Subsequent legal review of each state’s medical licensure statutes determined that, of the 39 states for which the Laboratory provides preparation and interpretive services, ten states required full licensure, one state required a telemedicine license, and one state required registration of the physicians. Table I is a compilation of these medical licensure statutes, the penalties for violation of those regulations, and a determination on the need for licensure in the 50 states, the District of Columbia, Guam, and Puerto Rico.
DISCUSSION State regulation of the interpretation of interstate pathology specimens has not been a visible or significantly controversial issue among dermatopathologists to date. In nineteen years of providing dermatopathology services, the Laboratory has not had a single inquiry or complaint regarding a requirement that a valid medical license be obtained in the state where the specimen originated. In fact, the current circumstances have only arisen because of a ‘‘turf issue,’’ namely that a patient believed that a local laboratory should have received the specimen for interpretation. The events that
Olsen, Feeser, and Jenkins 455
followed severely disrupted the efficient flow of dermatopathology interpretations from the Laboratory to many physicians, and have harmed the attendant relationships between the dermatopathologists of the Laboratory and the practicing dermatologists, which are critical to quality diagnosis and patient care. Position papers, drafted and endorsed by the ASDP and the AADA in 1994 and 1995, respectively, attest to the validity of the concept of ‘‘Consultant of Choice.’’5 The policy advocates that a dermatologist or other cutaneous surgeon should have the freedom to send biopsy specimens to the consultant of their choosing. Such practice has been the norm for years. However, in the current era of information explosion, telemedicine, increased health care bureaucracies, and laboratory consolidation, regulations governing the interpretation of pathology specimens are becoming increasingly onerous. It is conceivable that in the near future dermatopathologists will be required to obtain licensure in each state from which they interpret biopsy specimens. Acknowledging that some of the state statutes specifically address the regulation of pathologists,6 it is our contention that many of the recent changes in the state statutes are simply meant to regulate the practice of ‘‘telemedicine’’ in general. What remains problematic, however, is that each state has a varying definition of what telemedicine is. One general definition of telemedicine is ‘‘the long distance practice of medicine via the use of electronic communications.’’7 While practicing in this manner allows physicians to reach a geographically wide area and will allow many underserved segments of the public greater access to quality health care services, one must also be mindful of the need to maintain high standards for patient care and safety. For instance, the Executive Director of the Florida Board of Medicine has observed that telemedicine ‘‘has the potential to generate more sloppy medicine by emphasizing quantity over quality, cheaper over fair fees for services, and by creating excessive competition for referrals.’’8 Additionally troubling is the existence of unscrupulous physicians who wantonly prescribe medications or recommend treatments over the internet without ever examining or seeing their patients.9 It is for those reasons that many states have chosen to broadly define and regulate the practice of telemedicine. Yet, there is no uniformity to the ways in which these regulations have been adopted. Consequently, many state statutes are written so that they encompass perfectly safe methods by which physicians have been operating effectively for years. For instance, because of the efficiency and relatively
456 Olsen, Feeser, and Jenkins
low cost of overnight, third party couriers, as well as the immediate availability of results by fax or the internet, physicians are able to send pathology specimens for processing and interpretation to a dermatopathologist with whom they have established a trusted consultative relationship. This relationship may have been established during residency or by the credentials and reputation of the consultant. As states continue to enact regulations addressing the issue of telemedicine, many are being written so broadly that they encompass this consultative relationship between an out-of-state dermatopathologist and a referring physician. If this trend continues, dermatopathologists will soon be required to obtain a medical license in every state from which they receive biopsied tissue. This will require physicians to obtain the requisite number of hours of Continuing Medical Education for each state, keep track of the renewal dates and requirements for each of their licenses, and keep a vigilant watch for the enactment of new legislation in states that have not yet adopted telemedicine statutes. This administrative burden will ultimately increase the cost of pathology services and may restrict the ability of smaller laboratories to continue to serve long-referring physicians. Instead, the effect of these statutes should be to promote patient safety without disrupting long-established medical practices which are dedicated to quality diagnosis and patient care.
RECOMMENDATIONS AND CONCLUSIONS Given the fact that there is no uniform and allencompassing license that allows physicians to interpret interstate pathology specimens, and given the fact that states have the power to protect the health and safety of their citizens, the Laboratory has concluded that individual dermatopathologists interpreting a large number of specimens across state lines are currently required to adhere to the statute from the state where the biopsy originates. In many states, this requires dermatopathologists to obtain full medical licenses. In contrast, the Laboratory believes that dermatopathologists doing an infrequent number of interpretations from another state could likely continue such services, as long as the state from which the pathological specimen originated recognizes an exception for such ‘‘infrequent’’ practice.10 One such group might include dermatopathologists in the university setting who provide infrequent intraspecialty consultations for colleagues in other states. While the Laboratory’s short term solution is to obtain state licenses as mandated by the various state statutes in place, the Laboratory anticipates that by
J AM ACAD DERMATOL SEPTEMBER 2004
mobilizing the various national medical associations, federations, and licensing boards, a long term solution can be found which would allow maximum protection of patients, meet the obligation of the states, and at the same time, promote efficiency, quality, and cost-effective diagnoses. More specifically, the Laboratory proposes and describes below three potential solutions: (1) utilization of current state laws that allow interpretation of interstate pathology specimens; (2) a Model Act to regulate the interstate practice of medicine; or (3) the amendment of CLIA. In contrast to states requiring full licensure, many state medical boards appear to have a better understanding of the nature of the consultative relationship between the dermatopathologist and the referring physician. These states, including Idaho, Missouri, Nebraska, New Hampshire, and Oregon, exclude from licensure out-of-state physicians as long as they: (1) act in consultation with a physician licensed to practice medicine in the state; (2) the physician licensed in the state retains ultimate authority and responsibility for the diagnosis and treatment in the care of the patient located within the state; and (3) the consulting physician does not open an office or appoint a place to meet patients or receive calls within the state. The Laboratory believes that this ‘‘consultant’’ exclusion represents the ideal solution in that it excludes the provision of interstate dermatopathology consultations from the broad telemedicine regulations, while allowing individual medical boards to retain jurisdiction and oversight in their respective states. The second option for consideration is the move to enact uniform laws regarding the practice of medicine across state lines. This option has been raised by many organizations, including the American Medical Association, which has been pushing for greater standardization in the licensure process for several years.11 In its opinion, standardization is necessary to help untangle ‘‘the maddening quilt of licensure requirements and credentials verifications faced by all physicians. . ..’’12 Other groups, including the American Academy of Dermatology Association,13 the Federation of State Medical Boards,14 and the Young Lawyers Division of the American Bar Association,15 are also advocating uniform state licensing laws. For instance, in 1996 the Ad Hoc Committee on Telemedicine from The Federation of State Medical Boards proposed the enactment of A Model Act to Regulate the Practice of Medicine Across State Lines (the ‘‘Model Act’’).16 The Model Act attempts to strike the proper balance between protecting the public without being overly burdensome for physicians. In
J AM ACAD DERMATOL VOLUME 51, NUMBER 3
reaching this goal, the Model Act ‘‘calls for an abbreviated but effective licensure process for physicians who will not be practicing physically within a state’s jurisdiction, but wish to provide services to patients located within that jurisdiction.’’17 A similar abbreviated approach is currently being utilized by the state of Minnesota. Minnesota requires the registration of out-of-state physicians who wish to serve patients located within the borders of Minnesota through the use of telemedicine. The physician must: (1) hold an unrestricted license to practice medicine in the state from which the physician will be providing telemedicine services; (2) have never had his or her license to practice revoked or restricted in any state or jurisdiction; (3) not open an office in Minnesota, receive calls within the state from patients located in Minnesota, or meet with patients within the borders of Minnesota; and (4) annually register with the Minnesota State Medical Board and pay an annual fee.18 In so registering, the physician agrees to be subject to all state laws, the judicial system, and the Minnesota State Medical Board with respect to providing medical services to Minnesota residents.19 In lieu of federal enforcement of ‘‘the consultation exception’’ described above as the ideal solution, this second solution of an abbreviated or special license obtained through individual state registration might be an acceptable alternative. It permits registered dermatopathologists to continue to provide interstate interpretive services without requiring the administrative burden and cost of full licensure, while continuing to allow individual states to adequately protect their citizens. A third solution warranting consideration is the amendment of CLIA. The goal would be to allow dermatopathologists to obtain a national license which would, in conjunction with their state medical license, allow the interpretation of out-of-state specimens without further licensure. The rules and regulations for such a national license could continue to be overseen by the Department of Health and Human Services, thereby creating uniform regulations for the interstate practice of dermatopathology. Securing any of the above solutions or others that might come forward will not be easy. It will take political consensus to accomplish these tasks, and support will be needed from a plurality of groups and organizations. The current temporary solution of obtaining individual licenses in states where biopsies
Olsen, Feeser, and Jenkins 457
originate is unnecessarily bureaucratic and costly, and seriously interferes with the consultant/physician relationship as well as the efficiency and quality of diagnosis in the physician/patient relationship. It is the intention of the Laboratory to initiate discussion with various groups and organizations which will hopefully lead to the development of a workable system for the interstate licensure of dermatopathologists. REFERENCES 1. Who May Practice Medicine or Surgery. Conn Gen Stat Ann § 20-9 (d) (2003). 2. American Academy of Dermatology Association, Position Statement on Physician Choice of Consultant for Interpretation of Skin Biopsy Specimens, 1994 Dec. Available at: http:// www.aadassociation.org/Policy/skinbiopsy.html. Accessed November 17, 2003. 3. Practicing without license; practicing defined; penalties, NC Gen Stat § 90-18 (b) (2003). 4. Id. 5. See Supra n. 2. 6. See Who May Practice Medicine or Surgery. Conn Gen Stat Ann § 20-9 (d) (2003); See also Practice of Medicine from Foreign Jurisdiction by Electronic Means. Ga Code Ann § 4334-31.1 (a) (2003). 7. American Bar Association Young Lawyers Division Health Care Law Committee, Recommendation and Report to the Assembly of the Young Lawyers Division, 1998 Jan [cited 2003 Nov 18]; 2 (1):[11 screens]. Available from: http://tie.telemed.org/ legal/issues/REPORT_yld_aba.pdf (hereinafter ‘‘ABA Report’’). 8. ABA Report, supra n. 5, at 5 (citing Marm M. Harris, Florida Department of Health, Legislative Proposal Analysis (1997). 9. ABA Report, supra n. 5, at 4. 10. For examples of states with such an exception, See Exemptions, Code of Ala § 34-24-505 (b) (2003); See Also Exemptions, Ark. Code Ann. § 17-95-203 (2)(A) (2003); See Also Practice of medicine defined e exemptions from licensing requirements e repeal, Colo. Rev. Stat. 12-36-106 (3)(b) (2002). 11. American Medical Association House of Delegates, International Medical Graduates Section, Reference Committee C, Resolution 303, 2000 Oct 27 [cited 2003 Nov 18]; 1 (1): [2 screens]. Available from: http://www.fsmb.org/fcvs_program/ pdf_files/ama_council_on_medical_education_report.pdf. 12. Id. 13. American Academy of Dermatology Association, Telemedicine, [cited 2003 Nov 18]; 1 (1): [2 screens]. Available from: http://www.aadassociation.org/Telemedicine_Issue.html. 14. See Federation of State Medical Boards, A Model Act to Regulate the Practice of Medicine Across State Lines, 1996 April [cited 2003 Nov 14]; Available from: http://www. fsmb.org/policy%20Documents%20and%20White%20Papers/ telemed.htm (hereinafter ‘‘Model Act). 15. See ABA Report, supra n. 5. 16. See Model Act, Supra n. 8. 17. Id at § II. 18. Interstate Practice of Telemedicine. Minn Stat Ann § 147.032 (2002). 19. Id.
ISSUES
Interstate dermatopathology interpretations— 50 separate licenses? Thomas George Olsen, MD,a Theresa Ann Feeser, MBA,b and Peter Leon Jenkins, JDc Dayton, Ohio The increasing bureaucracy of health care has had a serious negative impact on physicians and patients for the last fifteen years. We report an example of this trend involving the interstate interpretation of dermatopathology specimens, which resulted in a significant interruption of diagnostic services to a large number of dermatologists. Temporary and long term solutions are discussed with the hope that dialogue and political consensus-building can bring resolution to the problem. (J Am Acad Dermatol 2004;51:454-7.)
U
ntil recently, dermatopathologists have assumed that being licensed to practice medicine in the state where the diagnostic service is rendered, as well as obtaining laboratory certification under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), allowed them to provide anatomic pathology services to physicians nationwide. However, because of the rapid growth of telemedicine over the last decade, many states have begun to regulate the interstate practice of medicine (Table I; available online only at www.eblue.org). Unfortunately, some of these states have defined the interstate practice of medicine to include the diagnosis of a patient by electronic or any other means. Connecticut, for example, requires out-of-state physicians to obtain a Connecticut medical license if, through interstate commerce, they provide Connecticut residents with ‘‘diagnostic or treatment services, including primary diagnosis of pathology specimens, slides or images. . .’’1 The implications of this juxtaposition are considerable, potentially requiring dermatopathologists to acquire and maintain multiple medical licenses in order to comply with the various state laws. We report a recent incident whereby an Ohio medical license was insufficient to provide an interpretation on a skin biopsy taken from a patient residing in North Carolina. The situation led to a legal
From the Division of Dermatology, Wright State University School of Medicine,a Dermatopathology Laboratory of Central States,b and Corporate and Health Care Law, Coolidge, Wall Womsley and Lombard, Co. L.P.A.c Funding sources: None. Conflicts of interest: None identified. Reprint requests: Thomas G. Olsen, MD, 7835 Paragon Rd, Dayton, OH 45459. E-mail: [email protected]. 0190-9622/$30.00 ª 2004 by the American Academy of Dermatology, Inc. doi:10.1016/j.jaad.2004.03.041
454
review of the medical licensure statutes in every state and several US territories. As a part of the review, the penalties for violating the licensure statutes were examined, and conclusions were drawn as to whether additional licensure is necessary to provide interpretations for out of state pathological specimens. It is our intention to: (1) raise awareness of the problem; (2) provide information to colleagues and laboratories; and (3) establish a dialogue to secure legislative relief.
BACKGROUND AND CASE REPORT The dermatopathology laboratory (the ‘‘Laboratory’’) is located in Ohio and has prepared slides and provided interpretations to dermatologists, plastic surgeons, podiatrists, otolaryngologists, ophthalmologists, and generalists since 1984. The operating position has been that a valid CLIA license and valid state medical license allowed its physicians to provide dermatopathology services nationwide without the need for additional licensure by state medical boards. For the last twelve years, the Laboratory has also maintained a New York State laboratory certification. New York requires laboratories that provide services to New York residents to comply with state regulations and inspection requirements. Additionally, for the last six years, the Laboratory has received accreditation by the College of American Pathologists (CAP), an accrediting body recognized by the federal government as being equal to or more stringent than CLIA. The Laboratory has also advocated the ‘‘consultant of choice’’ theme, as drafted and endorsed by the American Society of Dermatopathology (ASDP), and the American Academy of Dermatology Association (AADA), whereby physicians should be able to send their specimens to the consultant of their choice.2 Recently, a skin biopsy from a patient of a North Carolina dermatologist was sent to the Laboratory for
J AM ACAD DERMATOL VOLUME 51, NUMBER 3
preparation and interpretation. A written report was then returned to the dermatologist in North Carolina who discussed the results with the patient. The patient, who was employed by a North Carolina laboratory, was concerned and upset that the biopsy was not submitted to a laboratory in North Carolina. Subsequently, the patient filed a formal complaint to the North Carolina Medical Board who then forwarded it to the North Carolina dermatologist. The sole basis for this complaint was the fact that the physician at the Laboratory did not have a North Carolina medical license. There were no allegations or concerns regarding the quality of the interpretation. North Carolina statutes require that any physician practicing medicine in North Carolina who does not meet one of the listed exceptions must obtain a valid North Carolina medical license, even if the physician resides in and has a valid medical license in another state.3 One of the listed exceptions allows an out-ofstate physician to practice without obtaining a North Carolina license if they come into North Carolina ‘‘either in person or by use of any electronic or other mediums, on an irregular basis, to consult with a resident registered physician.’’4 Because this exception does not clearly define what constitutes irregular practice, the Laboratory made the decision to discontinue interpretive services in North Carolina until its physicians could obtain licensure in North Carolina, a 90- to 160-day process. Subsequent legal review of each state’s medical licensure statutes determined that, of the 39 states for which the Laboratory provides preparation and interpretive services, ten states required full licensure, one state required a telemedicine license, and one state required registration of the physicians. Table I is a compilation of these medical licensure statutes, the penalties for violation of those regulations, and a determination on the need for licensure in the 50 states, the District of Columbia, Guam, and Puerto Rico.
DISCUSSION State regulation of the interpretation of interstate pathology specimens has not been a visible or significantly controversial issue among dermatopathologists to date. In nineteen years of providing dermatopathology services, the Laboratory has not had a single inquiry or complaint regarding a requirement that a valid medical license be obtained in the state where the specimen originated. In fact, the current circumstances have only arisen because of a ‘‘turf issue,’’ namely that a patient believed that a local laboratory should have received the specimen for interpretation. The events that
Olsen, Feeser, and Jenkins 455
followed severely disrupted the efficient flow of dermatopathology interpretations from the Laboratory to many physicians, and have harmed the attendant relationships between the dermatopathologists of the Laboratory and the practicing dermatologists, which are critical to quality diagnosis and patient care. Position papers, drafted and endorsed by the ASDP and the AADA in 1994 and 1995, respectively, attest to the validity of the concept of ‘‘Consultant of Choice.’’5 The policy advocates that a dermatologist or other cutaneous surgeon should have the freedom to send biopsy specimens to the consultant of their choosing. Such practice has been the norm for years. However, in the current era of information explosion, telemedicine, increased health care bureaucracies, and laboratory consolidation, regulations governing the interpretation of pathology specimens are becoming increasingly onerous. It is conceivable that in the near future dermatopathologists will be required to obtain licensure in each state from which they interpret biopsy specimens. Acknowledging that some of the state statutes specifically address the regulation of pathologists,6 it is our contention that many of the recent changes in the state statutes are simply meant to regulate the practice of ‘‘telemedicine’’ in general. What remains problematic, however, is that each state has a varying definition of what telemedicine is. One general definition of telemedicine is ‘‘the long distance practice of medicine via the use of electronic communications.’’7 While practicing in this manner allows physicians to reach a geographically wide area and will allow many underserved segments of the public greater access to quality health care services, one must also be mindful of the need to maintain high standards for patient care and safety. For instance, the Executive Director of the Florida Board of Medicine has observed that telemedicine ‘‘has the potential to generate more sloppy medicine by emphasizing quantity over quality, cheaper over fair fees for services, and by creating excessive competition for referrals.’’8 Additionally troubling is the existence of unscrupulous physicians who wantonly prescribe medications or recommend treatments over the internet without ever examining or seeing their patients.9 It is for those reasons that many states have chosen to broadly define and regulate the practice of telemedicine. Yet, there is no uniformity to the ways in which these regulations have been adopted. Consequently, many state statutes are written so that they encompass perfectly safe methods by which physicians have been operating effectively for years. For instance, because of the efficiency and relatively
456 Olsen, Feeser, and Jenkins
low cost of overnight, third party couriers, as well as the immediate availability of results by fax or the internet, physicians are able to send pathology specimens for processing and interpretation to a dermatopathologist with whom they have established a trusted consultative relationship. This relationship may have been established during residency or by the credentials and reputation of the consultant. As states continue to enact regulations addressing the issue of telemedicine, many are being written so broadly that they encompass this consultative relationship between an out-of-state dermatopathologist and a referring physician. If this trend continues, dermatopathologists will soon be required to obtain a medical license in every state from which they receive biopsied tissue. This will require physicians to obtain the requisite number of hours of Continuing Medical Education for each state, keep track of the renewal dates and requirements for each of their licenses, and keep a vigilant watch for the enactment of new legislation in states that have not yet adopted telemedicine statutes. This administrative burden will ultimately increase the cost of pathology services and may restrict the ability of smaller laboratories to continue to serve long-referring physicians. Instead, the effect of these statutes should be to promote patient safety without disrupting long-established medical practices which are dedicated to quality diagnosis and patient care.
RECOMMENDATIONS AND CONCLUSIONS Given the fact that there is no uniform and allencompassing license that allows physicians to interpret interstate pathology specimens, and given the fact that states have the power to protect the health and safety of their citizens, the Laboratory has concluded that individual dermatopathologists interpreting a large number of specimens across state lines are currently required to adhere to the statute from the state where the biopsy originates. In many states, this requires dermatopathologists to obtain full medical licenses. In contrast, the Laboratory believes that dermatopathologists doing an infrequent number of interpretations from another state could likely continue such services, as long as the state from which the pathological specimen originated recognizes an exception for such ‘‘infrequent’’ practice.10 One such group might include dermatopathologists in the university setting who provide infrequent intraspecialty consultations for colleagues in other states. While the Laboratory’s short term solution is to obtain state licenses as mandated by the various state statutes in place, the Laboratory anticipates that by
J AM ACAD DERMATOL SEPTEMBER 2004
mobilizing the various national medical associations, federations, and licensing boards, a long term solution can be found which would allow maximum protection of patients, meet the obligation of the states, and at the same time, promote efficiency, quality, and cost-effective diagnoses. More specifically, the Laboratory proposes and describes below three potential solutions: (1) utilization of current state laws that allow interpretation of interstate pathology specimens; (2) a Model Act to regulate the interstate practice of medicine; or (3) the amendment of CLIA. In contrast to states requiring full licensure, many state medical boards appear to have a better understanding of the nature of the consultative relationship between the dermatopathologist and the referring physician. These states, including Idaho, Missouri, Nebraska, New Hampshire, and Oregon, exclude from licensure out-of-state physicians as long as they: (1) act in consultation with a physician licensed to practice medicine in the state; (2) the physician licensed in the state retains ultimate authority and responsibility for the diagnosis and treatment in the care of the patient located within the state; and (3) the consulting physician does not open an office or appoint a place to meet patients or receive calls within the state. The Laboratory believes that this ‘‘consultant’’ exclusion represents the ideal solution in that it excludes the provision of interstate dermatopathology consultations from the broad telemedicine regulations, while allowing individual medical boards to retain jurisdiction and oversight in their respective states. The second option for consideration is the move to enact uniform laws regarding the practice of medicine across state lines. This option has been raised by many organizations, including the American Medical Association, which has been pushing for greater standardization in the licensure process for several years.11 In its opinion, standardization is necessary to help untangle ‘‘the maddening quilt of licensure requirements and credentials verifications faced by all physicians. . ..’’12 Other groups, including the American Academy of Dermatology Association,13 the Federation of State Medical Boards,14 and the Young Lawyers Division of the American Bar Association,15 are also advocating uniform state licensing laws. For instance, in 1996 the Ad Hoc Committee on Telemedicine from The Federation of State Medical Boards proposed the enactment of A Model Act to Regulate the Practice of Medicine Across State Lines (the ‘‘Model Act’’).16 The Model Act attempts to strike the proper balance between protecting the public without being overly burdensome for physicians. In
J AM ACAD DERMATOL VOLUME 51, NUMBER 3
reaching this goal, the Model Act ‘‘calls for an abbreviated but effective licensure process for physicians who will not be practicing physically within a state’s jurisdiction, but wish to provide services to patients located within that jurisdiction.’’17 A similar abbreviated approach is currently being utilized by the state of Minnesota. Minnesota requires the registration of out-of-state physicians who wish to serve patients located within the borders of Minnesota through the use of telemedicine. The physician must: (1) hold an unrestricted license to practice medicine in the state from which the physician will be providing telemedicine services; (2) have never had his or her license to practice revoked or restricted in any state or jurisdiction; (3) not open an office in Minnesota, receive calls within the state from patients located in Minnesota, or meet with patients within the borders of Minnesota; and (4) annually register with the Minnesota State Medical Board and pay an annual fee.18 In so registering, the physician agrees to be subject to all state laws, the judicial system, and the Minnesota State Medical Board with respect to providing medical services to Minnesota residents.19 In lieu of federal enforcement of ‘‘the consultation exception’’ described above as the ideal solution, this second solution of an abbreviated or special license obtained through individual state registration might be an acceptable alternative. It permits registered dermatopathologists to continue to provide interstate interpretive services without requiring the administrative burden and cost of full licensure, while continuing to allow individual states to adequately protect their citizens. A third solution warranting consideration is the amendment of CLIA. The goal would be to allow dermatopathologists to obtain a national license which would, in conjunction with their state medical license, allow the interpretation of out-of-state specimens without further licensure. The rules and regulations for such a national license could continue to be overseen by the Department of Health and Human Services, thereby creating uniform regulations for the interstate practice of dermatopathology. Securing any of the above solutions or others that might come forward will not be easy. It will take political consensus to accomplish these tasks, and support will be needed from a plurality of groups and organizations. The current temporary solution of obtaining individual licenses in states where biopsies
Olsen, Feeser, and Jenkins 457
originate is unnecessarily bureaucratic and costly, and seriously interferes with the consultant/physician relationship as well as the efficiency and quality of diagnosis in the physician/patient relationship. It is the intention of the Laboratory to initiate discussion with various groups and organizations which will hopefully lead to the development of a workable system for the interstate licensure of dermatopathologists. REFERENCES 1. Who May Practice Medicine or Surgery. Conn Gen Stat Ann § 20-9 (d) (2003). 2. American Academy of Dermatology Association, Position Statement on Physician Choice of Consultant for Interpretation of Skin Biopsy Specimens, 1994 Dec. Available at: http:// www.aadassociation.org/Policy/skinbiopsy.html. Accessed November 17, 2003. 3. Practicing without license; practicing defined; penalties, NC Gen Stat § 90-18 (b) (2003). 4. Id. 5. See Supra n. 2. 6. See Who May Practice Medicine or Surgery. Conn Gen Stat Ann § 20-9 (d) (2003); See also Practice of Medicine from Foreign Jurisdiction by Electronic Means. Ga Code Ann § 4334-31.1 (a) (2003). 7. American Bar Association Young Lawyers Division Health Care Law Committee, Recommendation and Report to the Assembly of the Young Lawyers Division, 1998 Jan [cited 2003 Nov 18]; 2 (1):[11 screens]. Available from: http://tie.telemed.org/ legal/issues/REPORT_yld_aba.pdf (hereinafter ‘‘ABA Report’’). 8. ABA Report, supra n. 5, at 5 (citing Marm M. Harris, Florida Department of Health, Legislative Proposal Analysis (1997). 9. ABA Report, supra n. 5, at 4. 10. For examples of states with such an exception, See Exemptions, Code of Ala § 34-24-505 (b) (2003); See Also Exemptions, Ark. Code Ann. § 17-95-203 (2)(A) (2003); See Also Practice of medicine defined e exemptions from licensing requirements e repeal, Colo. Rev. Stat. 12-36-106 (3)(b) (2002). 11. American Medical Association House of Delegates, International Medical Graduates Section, Reference Committee C, Resolution 303, 2000 Oct 27 [cited 2003 Nov 18]; 1 (1): [2 screens]. Available from: http://www.fsmb.org/fcvs_program/ pdf_files/ama_council_on_medical_education_report.pdf. 12. Id. 13. American Academy of Dermatology Association, Telemedicine, [cited 2003 Nov 18]; 1 (1): [2 screens]. Available from: http://www.aadassociation.org/Telemedicine_Issue.html. 14. See Federation of State Medical Boards, A Model Act to Regulate the Practice of Medicine Across State Lines, 1996 April [cited 2003 Nov 14]; Available from: http://www. fsmb.org/policy%20Documents%20and%20White%20Papers/ telemed.htm (hereinafter ‘‘Model Act). 15. See ABA Report, supra n. 5. 16. See Model Act, Supra n. 8. 17. Id at § II. 18. Interstate Practice of Telemedicine. Minn Stat Ann § 147.032 (2002). 19. Id.