Interstate licensure for telehealth can fuel medical practice growth [PODCAST]

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“When it comes to using telehealth to treat patients out of state, most physicians are mindful about licensure issues. But some are not aware that if you don’t have a license to practice medicine in a given state, it isn’t just malpractice: It’s a criminal offense.

Licensing restrictions have been eased to facilitate care during the pandemic, and the new normal of greater state-to-state cooperation for access to care may persist after the pandemic. Still, the savvy physician knows that many restrictions apply and that understanding them reduces risk.

When we talk about interstate licensure, we’re not concerned with a one-time interaction with an established patient who happens to be traveling. For instance, say a physician has recently seen a patient, perhaps performed a procedure. Thereafter, the patient calls the physician with a question or a problem from another state while traveling. In such a case, the physician can simply address the patient’s concerns, whether that’s by a phone conversation, a telemedicine visit, a recommendation to go to the emergency room where they are, or whatever is appropriate, according to their best clinical judgment. That’s just practicing good medicine.”

David L. Feldman is chief medical officer, The Doctors Company.

He shares his story and discusses the KevinMD article, “Interstate licensure for telehealth can fuel medical practice growth.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today we welcome back on the show David Feldman. He is chief medical officer of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. He co-wrote the KevinMD article “Interstate licensure for telehealth can fuel medical practice growth.” David, welcome back to the show.

David L. Feldman: Glad to be here again with you, Kevin.

Kevin Pho: So we’ll get into the article in a little bit, but for those who missed your first episode, can you briefly share your story and your journey to where you are today?

David L. Feldman: Sure, happy to. I guess I consider myself an alternative career doc, Kevin. I started as a plastic surgeon and spent almost 20 years at a large urban academic medical center in Brooklyn, New York, Maimonides Medical Center, where I had a variety of roles. In addition to practicing, in the middle I got an MBA degree and then really went into administration, focused on the operating rooms, and I really ran the operating rooms for a number of years. You do that, and you sort of get absorbed in the world of patient safety. It stares you in the face, I like to say. I became the patient safety officer, and then, I guess, if I had thought about where I’d be headed next, it would be to be a patient safety officer for a system, and I sort of am. The system is malpractice, amongst, early on, for the last 10 years, in a bunch of large academic medical centers in New York, including Maimonides, and now for a large national company, really working on how to help clinicians, physicians, nurses, and others reduce risk, improve care, and improve patient safety. And I love what I’m doing.

Kevin Pho: Wonderful. So we last spoke a few months ago, and now we’re speaking in the last week of January. From a medical liability standpoint, are you seeing any emerging trends that you’ve learned from the pandemic over the last few months?

David L. Feldman: Well, unfortunately, malpractice lags behind everything else. We know that even when we’re trying to decide whether an intervention, shall we say, has had an impact on malpractice, it takes years, because the statute of limitations tends to be two or three years in most states, and then it takes years after that for the cases to be resolved and so forth for us to get information about them. So you’re not looking to malpractice to try and understand the impacts of the pandemic.

Having said that, I can tell you all of our legal experts and colleagues are worried about what will happen, not necessarily now or in this past year, there hasn’t been much, but what will happen in the future. And it’s very complex, with all of the legislation to protect physicians and nurses and others from lawsuits, federal legislation, the PREP Act, and so forth. So all I can say, and this is what my colleagues tell me, is time will tell.

Kevin Pho: All right. So let’s transition now into the KevinMD article that you co-wrote, “Interstate licensure for telehealth can fuel medical practice growth.” Now, for those who didn’t read that article, can you just walk my audience through it and share the story of why you decided to write it?

David L. Feldman: Sure. I think all of us, I wrote this with colleagues at The Doctors Company, both in our consulting group and in our government relations area, to really understand what the impact of licensure is on telehealth. I like to think of licensure as one of the big three, I refer to them, in the world of telehealth and telemedicine, which are licensing; security, and that’s been a big thing, cybersecurity, HIPAA, those sorts of things; and of course payment, the billing side of it. But we wanted to focus on licensure because a lot of people worry about that, where that intersects with malpractice, and it does.

So it’s important to keep in mind that even if you have an insurance policy, a malpractice insurance policy that covers you if you’re practicing in another state, it covers you wherever you are, you may not be following the laws of the state if you don’t have a license, and that would void your malpractice policy, saying you’re practicing medicine without a license. That’s illegal. So that’s the caution that we’re saying. That’s one part of this article.

The other really is to make the statement that this is here to stay. And I think I probably mentioned this in our prior talk: Many have thought of telemedicine as the silver lining, if there is such a thing, of the pandemic, because it was very pervasive early in the spring last year, and even though it’s gone back down, it’s not going back to the levels it was at prior to the pandemic, and it will become a part of almost every physician’s practice. There are opportunities, I think, for us as physicians to really incorporate this in a way that’s meaningful. It is a tool, that’s all it is, and it will be very patient-centric, and I think it can be very helpful to you and your practice. So I think that’s the summary of this: keeping in mind what the rules are and what’s coming down the pike, and understanding how you can leverage this in a way that can be helpful for your patients and for your practice.

Kevin Pho: So can you share a scenario where a physician may be violating their state licensure while practicing telemedicine? Any scenarios that you’ve heard of?

David L. Feldman: Yeah, we’ve had a number of these. And look, what we’re not talking about, and I remember this myself when I was in practice, is a patient who I’ve taken care of, I’ve done a procedure on, goes on vacation. A few weeks later, they’re in, I don’t know, Florida. I have no license in Florida, and they call me because they’ve got something, I don’t know, a stitch popping out, something like that. Now, that’s obviously something that I want to take care of. It would be neglectful if I didn’t answer them. But that’s a phone conversation, some advice. If I think they need to see a doctor locally or an emergency room, fine, or come back and see me when you’re home. That’s one thing.

What’s happened now as a result of the pandemic is there are people, especially in places, I live in the New York metropolitan area, you may be a doctor practicing in New York, and your patients have been seeing you in your New York office even though they live in New Jersey, Pennsylvania, or Connecticut. And that was fine, because they were seeing you in your New York office. Now the pandemic has caused those patients, depending on the practice, to say, “Well, maybe I can just see this doctor virtually.” But they’re in New Jersey, and you’re in New York. If, on a continuing basis, you don’t have a license to practice in New Jersey, then you’re practicing without a license, and you and that patient have to come to some agreement. Either you’re going to have to get a license in New Jersey, refer them to somebody else who can take care of them in New Jersey, or tell them it’s safe for them, and if they’re comfortable, to continue to come to your office. But you can’t just keep seeing them in New Jersey if you don’t have a license. That’s a problem.

Kevin Pho: So we have all these national telemedicine companies where doctors can see patients across the country. Now, how does this issue affect them?

David L. Feldman: Well, they’ve gotten a lot bigger. There’s a big demand for this. Many of them are out there, and I think they’re doing great work. They have to be careful about what they do. They’re only dealing with telemedicine types of visits. A lot of them deal with urgent care, and you’ve probably gotten these emails, as I have. If I was a patient at one point of a large academic medical center, I get them around holiday times, like July 2nd or 3rd. I’ll get an email: “By the way, if you’re having trouble on July 4th, we have our ER docs on standby for a televisit if you need to ask them something,” because nobody wants to go to a hospital or doctor on a holiday. Nobody will even be open, right? Hospitals are, but you don’t want to go there. So those are the kinds of questions.

Now you’ve got these companies that only do telemedicine, which I think is great, and they are very attuned to this. What I like about it is, those that I’ve seen, they have really good guidelines on their doctors saying, “You know what?” in the middle of even a visit, saying, “I’m not comfortable continuing this visit virtually. You really need to go and see a doctor, go to an emergency room, whatever it is,” because that’s what they do. They do only televisits, and they’re very attuned to that. I think doctors that incorporate it into a regular standard practice have to really keep that in mind: Is this the right kind of visit to have? It’s a tool, right? So I think those companies are adding value. They really are, and it’s patient-centric.

Kevin Pho: Some physicians have advocated for a national license or some reciprocity between states, especially contiguous states. So where do you stand on that, and where are we in terms of legislation, in terms of the feasibility of some type of national medical license?

David L. Feldman: Yeah, there’s been a lot in the literature, Kevin, about this whole deal with licensure. And look, it really comes down to the 10th Amendment. We’re a federalist society. Everything is state-based, including malpractice, by the way, and so is licensure. So the question is, is there going to be a national license? To summarize, in my opinion, I don’t think we’re going to get to that point.

There are some other options, however. The Interstate Medical Licensure Compact, the ILMC, is one way. It currently has about 30 states. It keeps changing every day. Last I looked, it’s about 30 states that agree to participate. You don’t get a special license. You don’t get a telemedicine license. You get a regular license. What happens is you sign up with your state, you pay a fee, that’s always a problem, and then your state expedites getting a regular full license with whatever state you’re asking for in a much quicker way. Those of us who’ve gotten licenses before know it can take a long time. You’ve got all this paperwork. So it expedites the process of getting a regular license. Now, if you’re going to be doing telemedicine in 50 states, that’s still going to be a little bit burdensome.

And when you think about other health care systems in the U.S., like the VA system or the military systems, if you practice in one of those centers, you can practice in any of them. That’s because they monitor them. And if you think about the issues with licensing in multistate communities, like where I am in the New York-New Jersey area, or health care systems that are now in multiple states; students going home, right? A student goes to college, they see a doctor where they’re in college, and then they go home for a vacation. How are they going to reach their doctor, who’s in a different state? And then multistate employers that have in-house care, right? Many big employers will have doctors as part of the perk of working for that company, but you may live in another state. So all those things really cry out for something like this.

But I think at the end of the day, states feel like, the licensing boards feel like, they’re serving a purpose. And we’ve seen this, unfortunately not a lot, but enough to make us nervous, where, you know this, Kevin, doctors who are behaving badly, shall we say, go from one state to another. And if there was a federal license, there’s more likelihood they could do that. Here, they have to literally go through and get another license in another state. There’s another check and balance, if you will, on that doctor’s behavior. And I think there’s just too much, there’s also some vested interest in keeping licensure state-based. I think the answer is going to be more of the ILMC concept, where it’s just easier to get another license, and some states are doing just telemedicine licenses, which will probably be easier to get, too. There are a few of those. That’s where I think we’re headed.

Kevin Pho: We’re talking to David Feldman. He is the chief medical officer of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. So, David, walk me through the process. If I’m a physician who is interested in doing nationwide telemedicine, what are some of the steps that we need to take to make sure that we don’t run afoul of these medical liability and state relationship rules?

David L. Feldman: So if you want to do this nationally, then you probably want, and that’s all you want to do, I mean, that’s the question, right? If you’re somebody practicing already and you want to incorporate telemedicine into your practice, that’s one thing. In that case, you want to go out, maybe get a consultant to help you figure out which vendor is going to serve your needs best. It’s very specialty-based. We know that practicing telemedicine as an ENT is going to look very different than practicing telemedicine as a family medicine doc, right? So you want to get help finding a vendor that can give you that equipment that has cybersecurity, all these things built into it.

And then you’ve got to go through your staff. It’s a very different workflow. This is not just like saying, “Oh, I’m going to do telemedicine, and we’ll just turn the switch on and have patients see me virtually instead of in person.” It’s totally different, and you want to make sure your staff is all knowledgeable on how to do this, that you’ve got the right procedures, consents, and so forth.

If all you want to do is telemedicine across the country, then some of these firms that you mentioned earlier do this, and they will probably make it easier for you to get a license. They’re going to make sure you follow all the rules, so it makes it easy for you. But it’s a different kind of practice. It’s only practicing telemedicine. And there are lots of doctors doing that, and I think if that’s something they like doing, it’s great. It’s a personal preference, like everything else.

Kevin Pho: And my final question, David: Your take-home message that you want to leave with the KevinMD audience?

David L. Feldman: Yeah, so I would say there’s a couple of things. First, be nimble with this. Dare I say, we’re in the middle of a pandemic. You’ve got to be nimble, right? Talk to your patients, be patient-centric, and I think using these kinds of tools is really going to be helpful for you and your patients. I’m a big believer in patient-centricity. The idea of a waiting room always kind of made me feel strange. Like, “Come sit in this place. There’s a TV in here. Have a seat. You’ll be here for a while.” That’s the message, and it just doesn’t feel right. So this is a tool that can help overcome some of those things.

As far as take-home messages, plan for the next three to five years, right? Think about what your practice is going to look like. See how telehealth and the licensing issues that go with it can fit into that, and be patient-centric, and think about how the technology and security issues can be helpful to you. So those would be the take-home messages that I’d have for your audience.

Kevin Pho: Well, David, thanks again for being on the show, and thanks again for your time and insight.

David L. Feldman: Pleasure. Nice talking to you again, Kevin.

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