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MARCH 27, 2020 -- A new ruling will change the way many doctors see patients -- at least during the COVID-19 crisis.
A number of states have already taken steps to waive their requirement that a physician be licensed in the state in order to provide care to patients. California and Florida are among the states that have done so — through their respective declarations of statewide emergency. More states are sure to follow.
"The waiving of state licensure requirements should help ease a number of stress points of the current crisis in ways that benefit society," said Gregory A. Hood, MD, an internist in Lexington, Kentucky, who is on the advisory board of Medscape Business of Medicine.
"As many have chosen to shelter in place, hoping to ride out the end of winter and, optimistically, the COVID-19 pandemic, there are physicians with second homes in South Carolina, Florida, and elsewhere who could be envisioned being brought into service to ease staffing shortfalls should the crisis exceed available resources.
"However, likely the most novel, necessary, and widespread impact of the waiving of licensure requirements will be aiding physicians in practicing telehealth video visits, as now authorized by Medicare and (hopefully) commercial insurers," said Hood.
"Historically, there has been concern regarding the fact that most state medical boards require the physician to be licensed in the state where the patient resides or is located," he said. "This weekend I was able to conduct a video visit with a patient in Florida, at her initiation, over the potential of a broken bone. The case should be expected to have fallen under an emergency, but this waiver provides reassuring clarity.
"With the assistance of her boyfriend performing elements of the physical examination under my direction, we were able to establish a probable diagnosis, as well as a treatment plan ? all while avoiding her exposing herself by leaving voluntary self-isolation or consuming resources in the emergency room," Hood said.
Elsewhere, in response to the COVID-19 pandemic, the Federation of State Medical Boards has announced that it will act to verify licenses and credentials for doctors wishing to practice across state lines.
The "Emergency Exception" to In-State Licensing Requirements
Most state medical boards recognize some version of an exception to the in-state licensing requirement if a doctor or other healthcare professional is providing emergency care to a patient. But these exceptions rarely define what qualifies as an emergency. So, whether treatment of a COVID-19 patient or treatment of a non-COVID-19 patient who requires care in a triage setting constitutes an emergency — so that the exception to the licensing requirement applies—has been something of an open question.
What's more, many states have laid out various exceptions to the exception. For example, in some states, the person providing the emergency treatment cannot be doing so in exchange for monetary compensation. Elsewhere, the emergency treatment must be provided outside of a traditional healthcare setting (not in a hospital or doctor's office) to qualify under the exception.
Is Expedited Medical Licensing an Option?
There are ways for a care provider to obtain a medical license in some states without relying on the traditional (and often time-intensive) process. In Ohio, for example, the state's medical board can issue an expedited license to practice medicine, although the care provider still needs to submit an application — in other words, expedited licensing can't be granted retroactively. And in many states — including California, where medical board staff is required to complete initial review of an application within 60 working days — an expedited application isn't an option (at least not yet).
Around 30 states have joined the Interstate Medical Licensure Compact, which makes it easier for doctors to get licensed in multiple states through an expedited application process. According to the Interstate Medical Licensure Compact Commission, around 80% of doctors meet the criteria for licensing through the Compact.
Why Licensing Matters
State medical boards and other licensing agencies protect patients by making sure that an individual who practices medicine in the state is qualified to do so. That means scrutinizing applications to practice medicine in the state, reviewing credentials, and ensuring fitness to practice.
The practice of medicine without a license is typically considered a criminal act and is punishable by a variety of different sanctions (criminal, administrative, and professional). What's more, the fact that a care provider was practicing medicine without a license could set the table for allegations of medical malpractice.
From a liability standpoint, if a doctor or other clinician treats a patient in a state where the clinician is unlicensed, then it's a near certainty that any medical liability insurance the doctor carries will not apply to the treatment scenario. Suppose a patient is given substandard care and suffers harm at some point within the unlicensed treatment setting, and the patient files a malpractice lawsuit. In that situation, the doctor (and not an insurance company with so-called "deep pockets") will be on the financial hook for the patient's harm.
Doctors and other healthcare providers continue to serve the most critical of roles in our nation's response to the COVID-19 pandemic. Like most things related to COVID-19, the situation is sure to change.
David Goguen is a legal editor at Nolo whose work focuses on claimants' rights in personal injury cases. He is a member of the California State Bar and has more than a decade of experience in litigation and legal publishing. David is a graduate of the University of San Francisco School of Law.
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