Author: Les Trachtman, JD, MBA
This paper has been updated to reflect the most recent policy and industry changes through April, 2025.
This 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 is subject to the individual laws and regulations of 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, physical 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 less clear that other federal agencies like CMS will be able to follow suit.
States, acknowledging this changing environment, have both altered their own laws and in some cases joined together to self-regulate progressive changes. Some states have created “light weight” telemedicine licenses, easier to obtain and cheaper than full licensure for physicians who have established their practice outside of the state but offer their services to local patients. A multi-state agreement, called the Interstate Medical Licensure Compact (IMLC)1 shown left, currently includes 43 states and territories, and 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. It still requires the payment of fees in each licensed state. However, this compact does not make sense for a physician who less frequently wishes to provide services to a patient in a particular state.
Many states themselves have tried to expand access to the all-too-scarce specialized medical knowledge from centers of excellence. They realize that enabling access to this expertise will promote better health outcomes for their residents. As such, 48 of 53 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. The Telehealth Modernization Act of 2024 similarly expands flexibility and access of telehealth services, mindful that Senior Citizens in rural areas may benefit the most:
“It is our duty to ensure that our seniors, especially those in rural areas, have access to the healthcare services they deserve. In this day and age, we operate beyond the barriers of geographic restrictions, and our healthcare system should reflect such. Remote care has become an essential development in recent years and this bill is necessary in our efforts to modernize health care and ensure no one gets left behind,” said Congressman Van Drew.
A half dozen states have exceptions for out-of-state physicians to provide a limited number or episodic reviews of patients in their state. In addition, 85% 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 or at the request of a locally fully licensed physician.
Of the remaining states, only two explicitly prohibit out-of-state expert opinions. One might argue that the other states, while silent on the issue of enabling out-of-state expert medical reviews, wouldn’t actually prohibit them were a patient in their state have the need.
The Federation of State Medical Boards, an organization composed of the various individual state medical boards, believes that the issuance of remote second opinions from centers of excellence should not require a license in the state where the patient is located in order to review a patient case. While still only a recommendation, the FSMB’s proposed model would enable out-of-state centers of excellence to issue out-of-state opinions without imposing the requirement to register with that state. Since originally authoring this white paper, in April of 2023, states are just now beginning to consider its recommendation.
Our review of the patchwork of laws, rules and regulations of each state and territory, indicates that there is clear authority for establishing an inter-state second opinion program including the vast majority of U.S. jurisdictions, assuming you follow appropriate safeguards.
Of the 54 jurisdiction’s regulations that we have reviewed, 48 either outright permit remote second opinions, if done infrequently (some states using words like occasional, episodic, or irregular. Six set numeric limits) without requiring licensure. Almost half permit remote second opinions from out-of-state physicians if done at the request of a local physician with an existing physician-patient relationship, while others only require the out-of-state consultation be in concert with or in consultation with a local licensed treating physician. Several jurisdictions have established a specialized telemedicine license in order to allow an out-of-state consult. And, as mentioned, two prohibit a commercial out-of-state consult.
We believe that a best practice is to avoid issuing remote opinions in the two states that prohibit (commercial) out-of-state consults and act cautiously in the three others that lack clear language. For all the rest, it is best to systematically require the engagement of the patient’s local physician in the delivery of a remote second opinion. Documenting this engagement in the patient's case file is a "best practice."
The full version of the state-by-state analysis, shown in the map below, includes a summary of evaluated legislation, regulations, and rules that control the practice of medicine within each state's borders.
