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Telehealth exploded at the start of the COVID-19 pandemic as patients and providers scrambled to find safe, effective ways to receive and deliver care remotely. While its popularity has more recently receded, it is fair to say that telehealth is now an engrained component of our healthcare delivery system.

Hospitals and their specialist providers often raise the question: “When does a patient become ‘my patient,’” when seeking to provide medical services remotely, where the patient is in a geography that doesn’t fall within their current licensure. While this may seem like a simple question, its complexity can be determinative of a potentially complex legal issue.

The following is intended for informational purposes only and should not be construed as legal advice. The information provided in this post 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 post 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.

"If I have a physician or contract with a team of physicians licensed in every state,
does that make my remote second opinions issued anywhere legal?"

This question inevitably comes up. On its surface, you might expect that this encompassing licensure paves the way for your organization to issue remote second opinions anywhere in the country. However, a close reading of the law of each state contradicts that premise.

In order to provide a remote second opinion, a physician that is not licensed in the state in which the patient is physically located (ostensibly, one of your specialists), must either rely on an exception or exemption from that state’s licensure laws and regulations in order to legally deliver that opinion. Having another physician, not the one rendering the opinion, who is licensed in the target state, may actually not provide you with sufficient legal stature.

In a rural town in the United States, Jordan’s infant son, Milo, was born with a cranial abnormality. Upon medical evaluation at their local hospital, the infant was diagnosed with craniosynostosis, a congenital disorder characterized by premature fusion of cranial sutures leading to a misshapen skull and potential brain growth restriction. Milo required major surgery to address his condition, but due to the scarcity of specialized healthcare services in their region, particularly for such a complex procedure, the family could not access the necessary medical expertise. Desperate for support, Jordan researched her son's condition and located a children's hospital with a top-ranked Craniofacial surgeon. Yet, the facility was nearly one thousand miles away from their hometown, and due to financial constraints, such as the cost of transportation, lodging, and time off from work, Jordan doubted their ability to make the trip across the country for the surgical evaluation. She worried that even if they could get there, what would happen if her son was not a good candidate for the surgery? It was not a realistic option for them to visit multiple hospitals in person to receive second opinions, and she felt stuck. Jordan’s story represents the struggle of many Americans to access quality medical care for their children without facing significant geographic and financial barriers. For this reason, many families seek answers closer to home, instead of receiving care from top experts, which can reduce positive healthcare outcomes.

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.