I saw a recent post by a psychiatrist who treats patients for addiction problems.
From time to time, his patients, like all patients, travel from one state to another. They may call him and ask for advice – or a prescription refill. The psychiatrist wondered if speaking and/or treating traveling patients ran counter to that state’s Board of Medicine policies.
Why the concern?
When patients travel from another state and see you in your office, the practice of medicine is deemed to occur in your office – in your state – where you are licensed.
But, if the patient is geographically in another state, the answer is less clear.
To clear up the ambiguity, the psychiatrist did a survey. If a patient was planning a trip to another state, and he suggested he wanted to keep in touch, the psychiatrist called that state’s Medical Board to see what the rules were. What he learned surprised him. It surprised me.
First, the good news. Most states he called gave the rational, reasonable answer.
For example, California said: “You can call in prescriptions. You can talk to them on the phone and it doesn’t matter where they are because you have that patient physician relationship so there are no issues with you calling your patient while there in California or prescribing the medication.”
Michigan seemed a little more restrictive: “The physician does not need a Michigan license provided the patient stays in the state for 30 days or less and the physician writes a letter to the Bureau of Health Professions prior to the visit.”
And now, select examples of less reasonable states:
Virginia:
“According to Board attorney: prohibited, but violation results only in a letter to the licensing board of the state(s) in which you have a license. § 54.1-2902. Unlawful to practice without license.
Exception for emergencies:
§ 54.1-2901. Exceptions and exemptions generally.
(7) The rendering of medical advice or information through telecommunications from a
physician licensed to practice medicine in Virginia or an adjoining state to emergency medical personnel acting in an emergency situation”
And the worst:
Nevada: “Even telephone contact with a patient visiting the state is illegal practice without a license, regardless of whether the patient is charged a fee.”
A telephone call? Really?
No comment.
That is a good topic, as I travel a lot doing locums to different states, and run in to this situation often, like ordering an Rx, for example ampicillin, for a family member from out of state, while I am not licensed in that state where my family lives, but I am licensed where I may be working at that time, there should be a consistent policy on which all boards agree.
Why isn’t Nevada’s rule a First Amendment violation? Bill of Rights trumps state laws. Or is this now the People’s Republik of Amerika?
State declares treatment on the phone is “practice of medicine.” State can regulate practice of medicine (10th Amendment). Just because it can be done doesn’t mean it should be done.
Even First Amendment does not protect all speech, all of the time. If the government wants to regulate many types of speech, the test is strict scrutiny – does the government have a compelling interest in controlling this speech – and, if so, is it doing so in the least restrictive way possible.
And, then there’s “commercial” speech. eg: Can the Board of Medicine regulate how doctors advertise? The standard restricting the government is less demanding. Here are their “prongs”?
1. Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?
I have a question with regards to “practicing” in another state.
My office is on the border of NJ and NY. Many of my patients come from NY and I have just an NJ license. When I speak to them on the phone about a matter for their child does this constitute “practicing without a license”?
This would seem to be idiotic…
Scott
The psychiatrist who wrote the blog identifying the problem called the NY Licensing Board, among others, to ask whether treating his patient over the phone in NY would constitute practicing without a license. Apparently the response he received was “”Who would know?” (He summarized: Even telephone contact constitutes practicing without a license.) Accordingly, he psychiatrist ranked NY asan “F.”
I agree it seems idiotic. Enforcement of such edicts would make more sense for the horse and buggy era – and not the 21st century.
In any event, I had not heard about the issue until the psychiatrist called various Boards. I think the Boards answered based on how the law reads. I doubt any would enforce unless there was some gross violation of standards of care. What goes around comes around. While the NY Board might want to exercise its police powers against NJ doctors, NJ could do the same to NY doctors. Here, the NY and NJ doctors are just trying to take care of their patients who might travel or live across the state border. It would be in neither state’s interest to engage in this activity for a telephone call that ended with the patient receiving prompt, excellent care.
No problem, though, for out-of-state insurance consultants denying or micro-managing my treatment of my patients.