It’s a basic tenet of the practice of medicine in the United States: If a physician intends to treat patients in a particular state, he or she needs to be properly licensed or otherwise admitted to practice by that state’s medical board or other regulatory agency.
But amidst the COVID-19 pandemic, the issue of who is licensed to provide critical health care in a given area is coming under unique scrutiny, and unique measures are already being taken in response.
A number of states have already taken steps to essentially 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.
Another route around traditional medical licensing requirements is the Uniform Emergency Volunteer Health Practitioner Act, which—in the 20 or so states that have adopted it—can take effect once a statewide emergency is declared. This law lets volunteer health practitioners who are licensed in another state practice in the state where the emergency was declared, without first needing to obtain a license there. The practitioner need only be in good standing with any state in which he or she is currently licensed, and be registered as a volunteer in the system. The Washington State Department of Health was one of the first states to invoke the UEVHPA in response to the coronavirus.
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 waiving of state licensure requirements should help ease a number of stress-points of the current crisis in ways that benefit society," says Gregory A. Hood, MD, internist in Lexington, KY, 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,” says 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 says. "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.
Most state medical boards recognize some version of an exception to the in-state licensing requirement if a doctor or other health care 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) in order to qualify under the exception.
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).
The Interstate Medical Licensure Compact. 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.
State medical boards and other licensing agencies protect patients by making sure that an individual practicing 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 health care provider treats a patient in a state where the care provider is unlicensed, then it’s a near-certainty that any medical professional liability insurance (often known as "malpractice insurance") the doctor carries will not apply to the treatment scenario. Suppose a patient is given sub-standard care and suffers harm at some point within the unlicensed treatment setting, and the patient files a medical 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 health care providers continue to serve the most critical of roles in our nation’s response to the COVID-19 pandemic. This article offers a snapshot of the current landscape (as of March 2020) when it comes to waivers of in-state medical licensing requirements and related issues. Like most things related to COVID-19, it’s a picture that’s sure to change.