When is a patient a patient?
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.
Generally, a physician must be licensed in the jurisdiction in which a patient is located. The patient’s current location, not necessarily the residence of the patient, is what determines licensure requirements. It may sound illogical, but a patient may travel to a different jurisdiction (and may sit in her car in a parking lot) and as such will be subject to the medical license laws of that geography of that parking lot. We’ve heard of weirder scenarios than this!
Generally, a provider may legally treat any patient that comes for an in-person visit to their duly licensed practice or hospital location, even if it is in a jurisdiction that is foreign to the patient. The traveling patient would be considered a patient for legal purposes.
But what happens when that patient returns home after that in-person treatment and requires follow-up? Or what about a patient who has never been treated or seen in person, and requests a remote consult from a foreign jurisdiction? Is that patient a patient in terms of licensure requirements?
Offering Medical Services to an Out of State Patient
Generally, a patient who requires an episodic consultation (this is different from continuing telemedicine care) from an out-of-state provider (usually a specialist) is NOT considered a patient for licensure purposes. The implications are that without some type of exemption or exception to the licensure regulations, the provider may not provide medical services to that patient. However, that is only part of the legal story. In most US states and territories, there are exemptions provided for specialists to consult with an out of state patient, often in conjunction with or at the request of the patient’s local physician.
Read the white paper, “The Legal Reality of Issuing Second Opinions for Out of State Patients,” to learn more about which states have included exemptions to episodic care and what this means.
This exemption enables the provider to offer their medical opinion to that patient without violating a licensure regulation. However, this patient is not considered a patient for purposes of licensure. In this instance, we recommend not including the patient’s records or history within the hospital or provider’s EHR system. Storing this information separate from the local EHR ensures that there is no subsequent inadvertent mistake in the future of treating this patient as a patient.
Continuing Care for a Patient Returning Home to a Foreign Jurisdiction
The situation is a bit more complex for a patient who visits a provider in person (an in-person visit overcoming any foreign licensure issue) and then returns home. The records for the in-person visit will surely be included in the EHR system. However, not every state provides an exception for continuing consultation from a physician not licensed in the home state of the patient. A recent New Jersey case[1] that is currently pending, is attempting to invalidate that state’s restriction on such subsequent continuing care. New Jersey licensure regulations do not have a continuing care exemption. Therefore, care must be taken to ensure that subsequent medical advice is only provided if the home state of the patient permits a licensure exception continuing care for such a patient. This patient is still not a patient for licensure purposes unless that patient physically returns to the provider’s location.
Summary
This all may seem confusing, and it is! Until the archaic laws of each state adapt to the reality of modern communication, physicians and their employers will need to painstakingly continue to make a distinction of whether their patient is indeed a patient for purposes of licensure and must govern their actions according to the patient’s individual home state licensure regulations.
For a more comprehensive overview,
read the recently published white paper and interactive map:
The Legal Reality of Issuing Second Opinions for Out-of-State Patients
Did you miss the webinar on cross-state licensure for second opinions, or still have questions?
Watch the full webinar here, or just reach out to us.
Our team is happy to share our research and experience.
