The Legal Reality of Issuing Medical Second Opinions for Out of State Patients

The following paper is intended for informational purposes only and should not be construed as legal advice. The information provided in this paper is not a substitute for professional legal advice and should not be relied upon as such. Readers should always consult with a licensed attorney or qualified legal professional for advice on specific legal issues. The author of this paper and any entities associated with the author are not responsible for any actions or decisions taken by readers based on the information provided in this paper.

In the United States, it is well established that individual states and territories, rather than the federal government, regulate the practice of medicine within their borders. That means that unless there is an exception, a provider must be licensed in the state in which the patient is located in order to deliver a medical diagnosis or to prescribe treatment to a patient in a specific jurisdiction. The licensure process is burdensome and expensive, effectively impeding all but the most determined physician from seeking this legal authority to practice beyond his or her state’s borders.

Telemedicine is putting enormous pressure on this state-by-state licensure system.? With physicians now physically capable of remotely and electronically performing much of what an in-person consult would involve, state borders are becoming less relevant. The federal government, while acknowledging this reality, is not sufficiently empowered to change much. Certain federal agencies, like the Veterans Administration, have taken steps to enable the interstate practice of medicine for the veterans they serve. It is not clear that other federal agencies like CMS will be able to avail themselves of similar powers.

States, acknowledging this changing environment, have both altered their own laws and banned together to self-regulate progressive changes. Some states have created “light weight” telemedicine licenses, easy to obtain and much cheaper than full licensure for physicians who practice outside of the state but offer their services to local patients. A multi-state agreement, called the Interstate Medical Licensure Compact (IMLCC), which currently includes 38 of 54 jurisdictions, has made it much easier (albeit, not less expensive) for physicians to apply once and obtain medical licenses in multiple states. This is great for physicians who have a density of patients in specific states. However, this compact does not make sense for a physician who may be episodically called upon to issue a second opinion in a particular state.

Many states have gone even further to try to expand access to the all-too-scarce specialized medical knowledge from remote centers of excellence. They realize that enabling access to this expertise will promote better health outcomes for their residents. As such, 36 of 54 states and territories of the US currently make a clear legal distinction enabling an out of state specialist to review a patient case in their state, under a prescribed set of conditions. Rural states’ representatives have led some of these efforts. In March of 2023, a bipartisan bill was introduced by Montana and Nevada representatives that would expand access to telehealth services permanently, in a post COVID environment.

Just over a dozen states have exceptions for out of state physicians to provide a limited number or episodic reviews of patients in their state. In addition, two thirds of the states provide an exception that allows an out of state physician to provide a review and diagnosis (second opinion) for a resident if done in consultation with a locally fully licensed physician.

Of the remaining third of the states, only two, Utah and the US Virgin Islands explicitly prohibit out of state expert opinions. Utah actually only prohibits them if done for remuneration and the Virgin Islands permits them, but only after obtaining a telemedicine license. One might argue that the remainder of the states, while silent on the issue of enabling out of state expert medical reviews, don’t actually prohibit them.?

The Federation of State Medical Boards, an organization composed of the various state medical boards, believes that remote second opinions from centers of excellence should not be required to obtain a license in the state where the patient is located in order to screen a patient. While still only a recommendation that each state has discretion to adopt or not, the FSMB would like to wholesale enable out-of-state centers of excellence reviews of medical cases. In the coming months, we expect to see many states adopting this common sense recommendation.

Our review of the patchwork of laws, rules and regulations of each state and territory, indicate that there is clear authority for establishing a inter-state second opinion program in the majority of US jurisdictions, assuming your program includes appropriate safeguards.

Of the 54 jurisdiction’s regulations that we have reviewed, 36 either permit remote second opinions, if done infrequently (using words like occasional, episodic, or irregular, with four setting actual numeric limits) without requiring licensure, or otherwise permit remote second opinions from out of state physicians if done at the request of or in consultation with a local licensed treating physician who already has an established physician-patient relationship. Only two jurisdictions that we have found either require a specialized telemedicine license in order to allow an out of state consult (Virgin Islands) or require that an out of state consult be done free of charge (Utah). The others are silent on the matter.

?We believe that a best practice is to avoid the two states that prohibit (commercial) out of state consults (until they change the language of their regulations). Then systematically require the engagement of the patient’s local physician in the delivery of a remote second opinion. Our review indicates that a provider located in any jurisdiction that holds a valid license in his or her home state incurs limited risk to provide a second opinion to a patient in any US jurisdiction (with the exception of Utah and the Virgin Islands). Those more risk averse providers may instead focus on patients located only within one of the 36 jurisdictions that specifically permit remote second opinion reviews.

If you would like a copy of our state by state analysis table, please send me an email or message. ?

1 Elrod, James K and Fortenberry, Jr., John L, Centers of excellence in healthcare institutions: what they are and how to assemble them, https://pubmed.ncbi.nlm.nih.gov/28722562/

2 Report of the FSMB Workgroup on Telemedicine, Adopted by the FSMB House of Delegates, April 2022, https://www.fsmb.org/siteassets/advocacy/policies/fsmb-workgroup-on-telemedicineapril-2022-final.pdf