Born - Telemedicine in Massachusetts

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EDIT 1/7/2008 10:28:57 PM
TELEMEDICINE IN
MASSACHUSETTS: A BETTER WAY
TO REGULATE
Sarah E. Born*
Abstract: Telemedicine, any technology that allows for medical consultation
between healthcare providers and patients in geographically separate
locations, includes the exchange of health or medical information via the
telephone, facsimile machine, or Internet, the exchange of data or images on
a delayed basis, and interactive audio-visual consultations between
physicians and patients using high-resolution monitors, cameras, and
electronic stethoscopes. The development of this field of medicine, and its
evolution into a national practice over the last forty years, makes it
imperative for states to consider its effect on their regulation of physician
licensure. In particular, the possibility of both civil and criminal liability for
practicing medicine without a license means that state licensure models
significantly affect a physicians decision to participate in the practice of
telemedicine across state lines.
States have the power to regulate physician licenses as they choose under the
Tenth Amendment of the United States Constitution. However, given this
authority, most state regulations governing the practice of medicine and
physician licensure only allow physicians licensed in their own state to treat
patients. The strict licensure requirements prevent patients from accessing
the benefits of telemedicine such as: increased access to primary care
physicians and specialists in underserved populations and regions, decreased
medical service costs, and more efficient medical services. As telemedicine
increases the practice of medicine across state lines, the argument for federal
regulation of physician licensure and preemption of state regulation has been
strengthened.
This Note, however, argues that in order to maintain control of the welfare of
their citizens, it is crucial that states work together to implement licensure
schemes that facilitate the practice of telemedicine across state lines, in the
* Candidate for Juris Doctor, New England School of Law (2008); B.A.,
Biochemistry, Case Western Reserve University (2001).
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196 NEW ENGLAND LAW REVIEW [Vol. 42:195
alternative to federal regulation. It is imperative for Massachusetts to play a

principal role in implementing this change in order to maintain its status as a
leader in healthcare across the country. Finally, this Note suggests a state-
based regulatory scheme that would enhance and promote the practice of
telemedicine.
[W]e should connect every hospital to the Internet, so that doctors

can instantly share data about their patients with the best specialists in the
field.1
INTRODUCTION
A woman from the small town of Egremont, Massachusetts,2 which
borders both Connecticut and New York, was brought to the emergency
room of a local hospital in the middle of the night when she had trouble
breathing. The emergency room physicians ordered blood work and took x-
rays, but the womans condition continued to deteriorate. She was placed
on a respirator when she could no longer breathe on her own. There was no
radiologist on call overnight to read her x-rays so the digital images of her
x-rays were sent to the closest large hospital, which happened to be in New
York. The radiologist from New York discovered that the woman had a
large tumor in her left lung that had gone undiagnosed and was responsible
for her poor respiratory condition.3
Having digital copies of x-rays interpreted by radiologists is an
illustration of one of the numerous advantages that telemedicine has
offered in its radical re-orientation of our healthcare system.4 Telemedicine
is one of the latest changes in the practice of medicine and it is
revolutionary in the way it diversifies healthcare and redefines patient
care.5 Anesthesia, radiology and diagnostic imaging, antibiotics and disease
1. Address Before a Joint Session of the Congress on the State of the Union, 1 PUB.
PAPERS 109, 112 (Feb. 4, 1997), available at http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=1997_public_papers_vol1_text&docid=pap_text-73.pdf.
2. See Town of Egremont Statistics, http://egremont-ma.gov/egremontstats.html (last
visited Dec. 4, 2007).
3. This hypothetical was invented by the author to illustrate one example of how small
hospitals benefit from telemedicine by sending x-rays off-site and out of state to be read by
specialists. See ADAM WILLIAM DARKINS & MARGARET ANN CARY, TELEMEDICINE AND
TELEHEALTH: PRINCIPLES, POLICIES, PERFORMANCE, AND PITFALLS 114 (2000).
4. See JEFFREY BAUER & MARC RINGEL, TELEMEDICINE AND THE REINVENTION OF
HEALTHCARE 85 (1999).
5. See generally id. at 59-85 (explaining six other healthcare innovations that have
transformed and modernized healthcare; naming telemedicine as the seventh and latest
major change in the modern practice of medicine).
2007] TELEMEDICINE REGULATION 197
prevention, and the genetics-based pharmacology movement are other

scientific advancements that are responsible for establishing healthcare as
we know it.6 However, those discoveries, unlike telemedicine, did not force
the legal and medical world to scrutinize the way states regulate physician
licenses.7
It is in Massachusetts that Dr. Kenneth Bird, a physician from
Massachusetts General Hospital (MGH), pioneered the development of
telemedicine.8 In 1968, Dr. Bird used a television technology system so
that physicians working remotely from MGH could perform[] physical
examinations, [make] diagnoses, and even deliver[] limited treatments to
ailing travelers at Logan International Airport.9 This example of early
telemedicine, however, did not implicate the challenges faced by the states
attempting to regulate physician licenses as it did not involve a physician
practicing medicine across state lines.10
The practice of telemedicine has expanded significantly over the past
forty years.11 The development of the field of telemedicine, and its
evolution into a national practice,12 has made it imperative for states to
consider its impact on their regulation of licensing.13 States have the power
to regulate physician licenses as they choose under the Tenth Amendment
of the United States Constitution.14 However, given this authority, most
state regulations that govern the practice of medicine and physician
licensure only allow physicians licensed in their own state to treat patients,
including treatment involving telemedicine.15
Telemedicine will remove the barriers of distance in patient care by
allowing a physician to provide a patient with treatment from afar.16
6. See id. at 62-75.

7. See id. at 168.
8. SHERRY EMERY, TELEMEDICINE IN HOSPITALS: ISSUES IN IMPLEMENTATION 3 (John G.
Bruhn ed., Garland Publg, Inc. 1998).
9. Id.
10. See MASS. GEN. LAWS ch. 112, 2, 5 (2006); 243 MASS. CODE REGS. 2.00 (2006);
243 MASS. CODE REGS. 2.02 (2006) (authorizing the Massachusetts Board of Registration in
Medicine (BORM) to regulate the licenses of physicians who practice within the state);
EMERY, supra note 8.
11. See U.S. GEN. ACCOUNTING OFFICE, TELEMEDICINE: FEDERAL STRATEGY IS NEEDED
TO GUIDE INVESTMENTS 17 (1997), available at http://purl.access.gpo.gov/
GPO/LPS11075 [hereinafter GAO REPORT].
12. See E-HEALTH BUSINESS AND TRANSACTIONAL LAW 235 (Barbara Bennett ed., 2002).
13. See id. at 234.
14. See discussion infra Part II.A.
15. See E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 235; see also
discussion infra Part III.A-B.
16. See BAUER & RINGEL, supra note 4, at 165.
Telemedicine also makes patient care and treatment more efficient by

increasing the speed at which medical services can be provided and
performed.17 However, the nationwide benefits of this healthcare revolution
cannot be realized until the state regulations relating to physician licenses
and the practice of medicine are amended to allow physicians from out of
state to legally practice telemedicine on patients within their borders.18
Currently, all fifty states,19 including Massachusetts,20 consider the
practice of medicine without a license a crime.21 Therefore, physicians
must be licensed in the states in which they provide traditional patient care,
or risk criminal prosecution.22 In addition, depending on the specific
regulatory model of a state, if a physician provides care to a patient from a
distance using telecommunication, or other technology, he or she may need
to be licensed in the patients state as well.23
The possibility of both civil and criminal liability for practicing
medicine without a license24 means that state licensure models significantly
affect a physicians decision to participate in the practice of telemedicine
across state lines.25 The expansion of telemedicine has been considerably
hindered by the difficult task physicians undertake to determine which
states require them to obtain a license for the practice of telemedicine.26
Once they have made the determination of what, if any, type of license is
required, the physician also must obtain, finance, and maintain multiple
state licenses.27
17. See id.

18. See LILLIAN BURKE & BARBARA WEILL, INFORMATION TECHNOLOGY FOR THE
HEALTH PROFESSIONS 69 (2d ed. 2005).
19. See, e.g., INST. OF MEDICINE, TELEMEDICINE: A GUIDE TO ASSESSING
TELECOMMUNICATIONS FOR HEALTH CARE 90 (Marilyn J. Field ed., 1996).
20. See MASS. GEN. LAWS ch. 112, 6 (2006) ([W]hoever, not being lawfully
authorized to practice medicine within the commonwealth and . . . holds himself out as a
practitioner of medicine or practices or attempts to practice medicine in any of its branches .
. . shall be punished by a fine . . . or by imprisonment . . . .).
21. See BURKE & WEILL, supra note 18.
22. See id.
23. Compare ALAN S. GOLDBERG & JOCELYN F. GORDON, TELEMEDICINE: EMERGING
LEGAL ISSUES 3-4 (Am. Health Lawyers Assn ed., 1999) (explaining the current
Massachusetts definition of the practice of medicine which would require out-of-state
physicians practicing medicine through telecommunications to obtain a full Massachusetts
license), with OHIO REV. CODE ANN. 4731.296 (West 2004) (carving out a specific license
exception for physicians licensed outside the state practicing telemedicine within its
borders).
24. See, e.g., MASS. GEN. LAWS ch. 112, 6 (2006).
25. See DARKINS & CARY, supra note 3, at 143.
26. See id.
27. See id.
State regulations must be amended to facilitate the practice of

telemedicine across state lines. Telemedicine will dramatically redefine
the delivery of health care services in this country.28 Its modernization of
the delivery of healthcare will help perfect flaws in the United States
healthcare system by decreasing the cost and increasing the quality and
accessibility of healthcare.29
If Massachusetts intends to remain a leader in healthcare,30 it is
imperative for state legislators and administrators to reform the state
statutes and regulations to facilitate the practice of telemedicine across state
lines.31 This paper addresses the issues involved in a states regulation of
physicians32 who practice in this evolving and specialized field of medicine
by explaining the definition of telemedicine and its growth.33 States have
traditionally governed the practice of medicine and physician licensure;
however, because of the national scope of telemedicine, the federal
government could pre-empt state regulation in this area to promote the
practice of telemedicine across state lines.34 In order to maintain control of
the welfare of their citizens, it is crucial that states work together to
implement licensure schemes to facilitate the practice of telemedicine
across state lines, in the alternative to federal regulation.
Part I of this Note examines the definition of telemedicine and the
benefits this area of medicine has to offer to the healthcare system. Part II
28. Edward M. Zimmerman et al., Telemedicine Is Redefining the Delivery of Health

Care Services, N.J.L.J., Dec. 18, 2000, reprinted in THE HEALTH CARE E-COMMERCE
REVOLUTION: LEGAL, FINANCIAL & REGULATORY STRATEGIES 67 (Practising Law Inst. ed.,
2001).
29. See FED. TRADE COMMN AND U.S. DEPT OF JUSTICE, IMPROVING HEALTH CARE: A
DOSE OF COMPETITION 23 (July 2004), available at http://www.ftc.gov/reports/healthcare/
040723healthcarerpt.pdf.
30. See Americas Best Hospitals, U.S. NEWS & WORLD REP., July 17, 2006, at 64
(listing Massachusetts General Hospital (MGH) and Brigham and Womens Hospital
(BWH) in the honor roll of the top twelve hospitals in the United States); see also
Avery Comarow, What It Means to Be Best, U.S. NEWS & WORLD REP., July 17, 2006, at
110 (describing the best hospitals as those which take on and excel at tough procedures . . .
followand often pioneernew treatment guidelines . . . [and] exploit the latest advances
in imaging, surgical devices, and other technologies); Americas Best Hospitals, U.S. NEWS
& WORLD REP., July 18, 2005, at 72 (listing MGH and BWH in the 2005 honor roll of
best hospitals).
31. See discussion infra Part IV.
32. See discussion infra Part II.A; see also Stacey Swatek Huie, Facilitating
Telemedicine: Reconciling National Access with State Licensing Laws, 18 HASTINGS COMM.
& ENT. L.J. 377, 379 (1996) (discussing proposed federal telemedicine regulation models,
but showing that current physician licensure regulation is within the purview of the states).
33. See discussion infra Part I.A.
34. See discussion infra Part II.C.
discusses the constitutional power of the states to regulate the practice of

medicine and physician licensure and the constitutional power that the
federal government could take advantage of to pre-empt state regulation of
telemedicine. Part III explains the current Massachusetts licensure model
and introduces alternative state regulatory models governing the practice of
telemedicine. In Part IV of this Note, I will introduce the most effective
way that Massachusetts can amend its regulations to eliminate the barriers
to telemedicine created by the current regulatory scheme.
I. WHAT IS TELEMEDICINE?
A. The Definition of Telemedicine

Telemedicine is defined as technologies that allow for medical
consultation between health care providers in geographically separate
locations.35 It can further be defined as the exchange of health or medical
information via the telephone or facsimile machine, or the exchange of data
or images on a delayed basis, or even interactive audio-visual
consultations between physicians and patients using high-resolution
monitors, cameras, and electronic stethoscopes.36 In short, telemedicine
allows patients to receive care from physicians when they are not in the
same location, which could even mean that the physician is not in the same
state as the patient.37
Telemedicine is currently being used in all aspects of healthcare,
including diagnosis, patient monitoring, treatment, and storage of patient
data.38 Telemedicine has even been divided into subspecialties, such as
teleradiology, telepathology, teledermatology, telecardiology, and
telepsychiatry.39 For instance, teleradiology sends radiological images, such
as x-rays or computerized axial tomography (CT) scans, in digital form
over the Internet or through phone lines to be analyzed by a radiologist in a
different location from the patient.40
Telemedicine allows a physician to easily obtain a second opinion
when diagnosing a pathology slide.41 A camera can be used to capture an
image of a pathology slide and this can be sent over the Internet to a second
pathologist at a distant location.42 Other specialties, particularly
35. EMERY, supra note 8, at 3.

36. GAO REPORT, supra note 11, at 16.
37. See Huie, supra note 32, at 401-02.
38. BURKE & WEILL, supra note 18, at 60.
39. See id.
40. See id. at 61-62.
41. See id. at 62.
42. See id.
teledermatology and telepsychiatry, use video conferencing to replace

traditional visits to a physician.43
Patients in Massachusetts already reap the benefits of telemedicine.44
Massachusetts state prisons use telemedicine to allow inmates to be seen by
specialists.45 This enabled the state prison to set up a telemedicine program
to treat HIV-positive prisoners.46 MGH initiated a telestroke service with
fourteen community hospitals.47 Physicians at the community hospitals
send CT scans of patients who are believed to be having ischemic strokes
to be read by neurologists at MGH, where someone is available to read the
images twenty-four hours a day.48 This allows patients to be diagnosed by
specialists in time to be placed on a medication which reverses the damage
of a stroke in fifty percent of patients if given enough time.49
B. The Benefits Offered by Telemedicine

The examples above, illustrating the expansive uses of telemedicine,
demonstrate the scope of benefits that telemedicine offers versus the
traditional practice of medicine.50 These benefits include increased
access to primary care physicians and specialists in underserved
populations and regions, decreased medical service costs, more efficient
medical services, and more informed health care choices that are
associated with greater access to information.51 Once state regulations
have been amended to ease the national flow of the practice of
telemedicine, patients will be able to take the greatest advantage of these
benefits.52
1. Rural Patients Benefit from Increased Access to Physicians.

Healthcare in rural areas makes considerable gains from increased
access to physicians using telemedicine.53 Rural patients are currently
43.See id. at 62, 64.

44.See BURKE & WEILL, supra note 18, at 66-67.
45.Id. at 66.
46.Id. at 67.
47.Liz Kowalczyk, Going the Distance in Stroke Treatment: Remote Care Approach
Widens in States Hospitals, BOSTON GLOBE, Apr. 3, 2006, at A1.
48. See id.
49. See id.
50. See Zimmerman et al., reprinted in THE HEALTH CARE E-COMMERCE REVOLUTION:
LEGAL, FINANCIAL & REGULATORY STRATEGIES, supra note 28, at 67.
51. Id.
52. See discussion infra Part IV.A.
53. See JOINT WORKING GROUP ON TELEMEDICINE, TELEMEDICINE REPORT TO CONGRESS
(1997), http://www.ntia.doc.gov/reports/telemed/intro.htm; see also E-HEALTH BUSINESS
disadvantaged in their access to quality healthcare since physicians are

reluctant to practice in rural areas because they feel professionally
isolated.54 Physicians practicing in rural areas face the unavailability of
continuing [medical] education, limited support services, lack of complete
medical facilities, excessive work loads, and time demands, and a reduced
reimbursement rate from Medicare.55 High levels of hospital closures, as
well as numerous patients without any health insurance, or with insufficient
amounts of insurance, also contribute to physician shortages.56
Telemedicine helps address these issues by decreasing the number of
physicians that actually need to be present in rural areas.57 Telemedicine
reduces the need for local primary care physicians by setting up facilities
where patients can be seen by their doctors remotely.58 Once a physician
has seen the patient for a preliminary visit, primary care physicians can
support other healthcare personnel such as nurse practitioners or physician
assistants in the more routine care of patients through video technology,
over the phone, or via the Internet.59
Telemedicine allows rural patients to gain access to specialists, so that
their health problems result in better outcomes.60 For instance, rural
hospitals do not always staff neurologists or radiologists twenty-four hours
a day.61 Telemedicine enables patient images and data to be transferred to
where a physician is located, allowing rural hospitals to avoid the costs of
having specialists on staff all the time and allowing patients to receive care
without traveling to see a specialist.62
The feelings of isolation that many rural physicians experience are
also improved through the use of technology.63 For example, chat lines
and online journal clubs can . . . help remote physicians feel connected with
mainstream medicine.64 Telemedicine has already helped rural physicians
AND TRANSACTIONAL LAW, supra note 12, at 236 (citing 42 U.S.C. 254(c) which creates a
rural health outreach and telemedicine grant program).
54. Ann Davis Roberts, Comment, Telemedicine: The Cure for Central Californias
Rural Health Care Crisis?, 9 SAN JOAQUIN AGR. L. REV. 141, 151 (1999).
55. Id.
56. Daniel McCarthy, The Virtual Health Economy: Telemedicine and the Supply of
Primary Care Physicians in Rural America, 21 AM. J.L. & MED. 111, 111 (1995).
57. See id. at 126.
58. Id. at 127.
59. Id.
60. See Kowalczyk, supra note 47.
61. See id.
62. See BURKE & WEILL, supra note 18, at 61-62.
63. See McCarthy, supra note 56, at 120, 127.
64. Fillmore Buckner & Raymund C. King, Telemedicine, in LEGAL MEDICINE 424, 424
(S. Sandy Sandbar ed., 6th ed., 2004).
feel less isolated by allowing physician consultation using

videoconferencing.65 In addition, continuing medical education programs in
urban healthcare facilities are accessible through videoconferencing or on
the Internet, attracting younger physicians to rural areas knowing that they
can keep up with newer medical techniques being used in urban areas.66
2. Decreasing the Cost of Healthcare

Many of the benefits offered by telemedicine are intangible; however,
a decrease in the cost of healthcare is one of the most significant and
concrete benefits that the advent of technology can offer to patients.67 In
2004, the cost of healthcare expenditures in this country reached $1.9
trillion, almost $6,280 per person.68 Healthcare represented sixteen percent
of the gross domestic product that year and costs increased at a rate three
times that of inflation.69 The increasing cost of healthcare affects those who
have insurance through their employers as well; in 2005, the cost of their
healthcare insurance also increased at a rate of three times that of
inflation.70
Telemedicine reduces the cost of healthcare through several
avenues.71 Telemedicine increases accessibility to specialists which
increases efficiency in diagnosis and treatment and is more cost-effective.72
The Internet offers greater access to disease prevention education, which
allows for early detection and treatment of illnesses.73 Early disease
prevention decreases hospitalizations and length of hospital stays, and
therefore, reduces the necessary amount of costly remedies.74 Telemedicine
further reduces the costs of healthcare by allowing less expensive
healthcare providers, such as nurse practitioners and physician assistants, to
be more involved with patient care.75
There is a possibility that telemedicine could increase the overall
expenditure on healthcare while at the same time reduce the per-patient
65. See id.; see also McCarthy, supra note 56, at 127.
66. See Buckner & King, in LEGAL MEDICINE, supra note 64, at 424.
67. See Huie, supra note 32, at 388.
68. NATIONAL COALITION ON HEALTH CARE, FACTS ON HEALTH CARE COSTS 1 (2006),
http://www.nchc.org/facts/2006%20Fact%20Sheets/Cost%20-%202006.pdf.
69. Id.
70. See id.
71. Huie, supra note 32, at 389-92.
72. See id. at 389-90.
73. Id. at 390.
74. Id.
75. Id. at 390-91.
cost.76 Because telemedicine increases healthcare accessibility, the volume

of patients may increase, resulting in a system that is overall more
expensive.77 This increased accessibility to healthcare, even at the cost of
an overall increase in price, is complementary to the healthcare initiatives
that are currently taking place in Massachusetts.78 Massachusetts is the first
state to try to insure all of its residents, and increasing citizen accessibility
to healthcare is clearly one of the states top priorities, regardless of an
increase in overall price.79
3. Increasing the Speed of Healthcare

Telemedicine not only increases accessibility to, and decreases the
cost of, healthcare, it also increases the speed of delivery by providing
patients with almost immediate access to care.80 The use of the Internet and
satellite communications in telemedicine to send voice, video, data, and
images permit faster access to care.81 With the increased speed of
healthcare delivery comes increased productivity and efficiency and
decreased cost.
Telemedicine speeds healthcare in rural areas where patients
previously would have been transferred to medical facilities with more
advanced care options.82 In fact, a study conducted by the Medical College
of Georgia showed that the Colleges telemedicine program allowed 85%
of rural patients who normally would have required transfer to a secondary
or tertiary care center to be treated within the rural community.83
Telemedicine offers the increased speed that is vital for certain
specialties such as pathology and radiology.84 Diagnostic pathology and
radiology often determine diagnosis and subsequent treatment that a
patient may need.85 Telemedicine increases the speed at which specialists
76. Id. at 392.

77. Huie, supra note 32, at 392.
78. See Scott Helman & Liz Kowalczyk, Joy, Worries on Healthcare: As Romney Signs
Bill, Doubts Arise About Revenues, BOSTON GLOBE, Apr. 13, 2006, at A1, available at
http://www.boston.com/news/local/massachusetts/articles/2006/04/13/joy_worries_on_healt
hcare/ (describing the new healthcare bill that will require all state residents to have health
insurance by July 1, 2007, and will require certain businesses to pay employees annually if
they do not provide insurance for them).
79. See id.
81. Id.
82. See id. at 383; see also Kowalczyk, supra note 47, at A1.
84. See DARKINS & CARY, supra note 3, at 92, 114-15.
85. See id. at 92.
can diagnose pathology samples and x-rays, while helping to reduce delays
that affect a patients health, chance of survival, or the determination of
whether or not he or she needs surgery.86 Increasing access to healthcare
for rural patients, decreasing the cost of healthcare, and increasing the
speed and efficiency of healthcare, are benefits that would more readily be
taken advantage of if state regulation of physician licenses facilitated the
practice of telemedicine on a national level.
II. THE CONSTITUTIONAL POWER OF THE STATES TO DEFINE PHYSICIAN

LICENSING REQUIREMENTS
A. The Tenth Amendment Reserves Licensure Power to the States.

The Tenth Amendment of the Constitution of the United States was
intended to preserve federalism and maintain the legislative power of the
states by prevent[ing] the national government from exceeding its more
narrowly construed enumerated powers.87 The Tenth Amendment states
that [t]he powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or
to the people.88 Federal and state courts have consistently held that the
Tenth Amendment grants state legislatures the power to regulate licensing
requirements for certain professions.89
The Supreme Court recognize[s] that the States have a compelling
interest in the practice of professions within their boundaries, and that as
part of their power to protect the public health, safety, and other valid
interests [states] have broad power to establish standards for licensing
practitioners and regulating the practice of professions.90 It is according to
this framework that the states have developed licensing laws to govern the
practice of medicine within their borders.91 State police powers grant the
legislature the authority to regulate the practice of medicine and physician
licensing requirements because these regulations strongly correlate to the
86. See id.

87. See Lars Noah, Ambivalent Commitment to Federalism in Controlling the Practice
of Medicine, 53 U. KAN. L. REV. 149, 154 (2004).
88. U.S. CONST. amend. X.
89. See Goldfarb v. Va. State Bar, 421 U.S. 773, 792-93 (1975) (finding that despite the
federal governments ability to regulate certain attorney practices under the Sherman Act,
states still have a great need to regulate the law profession since lawyers are essential to the
primary governmental function of administering justice); Dent v. West Virginia, 129 U.S.
114, 122-23, 128 (1889) (affirming the states ability to create licensure requirements for
physicians in order to maintain the communitys trust in the skill of physicians).
90. Goldfarb, 421 U.S. at 792.
91. See Noah, supra note 87, at 165.
protection of public health and safety, a function traditionally reserved to

the states.92
In court, state licensing laws have been challenged on the ground that
the right to practice medicine, or any profession for that matter, is a
property right that cannot be infringed without due process and
compensation.93 However, while every United States citizen has the right
to pursue any lawful profession, one is not deprived of his or her due
process rights when a state denies the right to practice because the
profession impacts the safety of its other citizens.94
In light of this and the traditional role of states in protecting the
publics health, safety, and welfare, the Supreme Court gives deference to
the states in their ability to create medical license laws.95 Provided that
those laws are not shams that use[] public health rhetoric to justify
improper discriminatory regulations, the Court will uphold these laws.96
When forced to balance an individuals property right and the states right
to regulate under its police powers, state regulation of the practice of
medicine wins.97
1. Massachusetts Interpretation of the Power to Regulate

Physician Licensure
Together with the Supreme Court of the United States, Massachusetts
courts have also consistently held that state legislatures have the right to
regulate the practice of medicine.98 In the interest of public health, safety,
morals, and welfare, the state may exercise its police powers to regulate
certain professions.99 Regulating professions, such as requiring a physician
to obtain a license to practice lawfully, interferes with individual rights;
therefore, states may only regulate such professions if they could
potentially jeopardize the public welfare.100
Massachusetts statutes and regulations monitor the practice of
92. See supra notes 89-91 and accompanying text.

93. Edward P. Richards, The Police Power and the Regulation of Medical Practice: A
Historical Review and Guide for Medical Licensing Board Regulation of Physicians in
ERISA-Qualified Managed Care Organizations, 8 ANNALS HEALTH L. 201, 214 (1999).
94. Dent, 129 U.S. at 121-22.
95. See id.; see also Richards, supra note 93, at 215-19.
96. See Richards, supra note 93, at 215.
97. See id. at 215-19.
98. See Weinberg v. Bd. of Registration in Med., 824 N.E.2d 38, 46 (Mass. 2005);
Wyeth v. Thomas, 86 N.E. 925, 927 (Mass. 1909).
99. Wyeth, 86 N.E. at 927.
100. See id.
medicine through licensing requirements and disciplinary measures.101 The

validity of state regulations rest:
[U]pon the proposition that those who undertake to cure the ills,
to treat the ailments, to prevent the diseases, and to relieve the
suffering of the race may be required to show themselves
possessed of technical skill to those ends. Soundness of moral
fiber to insure the proper use of medical learning is as essential
to the public health as medical learning itself.102
As recently as 2005, Massachusetts courts have affirmed that a licensed

physician whose professional conduct is subject to State regulation, is not
entitled to the full range of individual rights available to all citizens.103
The right of a physician to practice medicine is not above the sanctity and
safeguards that the government must provide to protect the publics
health by rational means.104 Furthermore, the states authority under these
statutes will be broadly construed by the courts as the goal of the states
statutes and regulations is to protect the public welfare.105
B. The Joint Working Group of Telemedicines Report to Congress
1. Joint Working Groups Suggested Solutions for Regulating the

Practice of Telemedicine
In 1995, the United States Department of Commerce and Department
of Health and Human Services formed the Joint Working Group on
Telemedicine (JWGT).106 This agency was formed as part of the National
Information Infrastructure initiative, which identified telemedicine as one
of the areas that needed attention.107 Congress asked the JWGT to submit a
report of its findings from federally funded studies conducted on
telemedicine108 as part of the Telecommunications Reform Act of 1996.109
101. See MASS. GEN. LAWS ch. 112, 2 (2006); MASS. GEN. LAWS ch. 112, 5 (2006);
243 MASS. CODE REGS. 2.00 (2006); 243 MASS. CODE REGS. 2.02 (2006).
102. Lawrence v. Briry, 132 N.E. 174, 176 (Mass. 1921).
103. Weinberg, 824 N.E. at 46.
104. Id. (quoting Haran v. Bd. of Registration in Med., 500 N.E.2d 268, 272 (Mass.
1986)).
105. See Kvitka v. Bd. of Registration in Med., 551 N.E.2d 915, 917 (Mass. 1990).
106. See Telemedicine Report to Congress Executive Summary, 73 N.D. L. REV. 131, 132
(1997).
107. See U.S. DEPT OF COMMERCE, TELEMEDICINE REPORT TO CONGRESS (Jan. 31, 1997),
http://www.ntia.doc.gov/reports/telemed/intro.htm.
108. Telemedicine Report to Congress, supra note 106, at 131.
The agency addressed legal and licensure issues in its report because state
licensure laws were seen to pos[e] a significant obstacle to achieving [the
potential to overcome barriers of distance] in healthcare markets that cross
state boundaries.110
The report JWGT made to Congress suggested the following
alternatives for the regulation of the practice of telemedicine:
(1) use of the consulting exceptions already existing in state
laws;
(2) endorsement of practitioners licensed in states with

equivalent standards;
(3) mutual recognition by states of the policies and processes of

the state from which the practitioner hails;
(4) reciprocity agreements, in which individual states would

negotiate with other states certain practice privileges for their
licensees without requiring additional licensure or harmonization
of standards;
(5) registration by licensees wishing to practice into another state

that would subject the registered practitioners to the jurisdiction
of the other state;
(6) limited licensure, which would require the practitioner to

apply for a license that would allow them to provide a narrow
range of services or a limited means through which to deliver
services; [and]
(7) the adoption of a national licensure system at the state or

federal level, which would create a standardized set of criteria
for practice nationwide.111
The JWGTs proposals reflect three general schemes that could be
employed to resolve the current licensure problems associated with the
practice of telemedicine across state lines.112 The first two approaches
include states independently attempting to regulate telemedicine using
various methods such as consultation exceptions or multiple states working
together to regulate telemedicine practitioners by mutual recognition of the
109. Communications Act of 1934, 47 U.S.C. 609 (1984), amended by

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).
110. U.S. DEPT OF COMMERCE, supra note 107.
111. E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 242.
112. Id. at 243.
licenses of physicians from the group of states in the agreement.113 These

approaches allow the state legislatures to maintain the power to regulate
licensing requirements within their borders.114 However, if the states are
unable to create a workable alternative, the third approach, where states
yield control of telemedicine licensing to the federal government, may
threaten to become a reality.115 Bearing in mind the possibility of pre-
emption by federal regulation, it is important for Massachusetts, and other
states, to implement effective regulatory models under one of the first two
approaches.116
The Federation of State Medical Boards of the United States
(FSMB) has already created a Model Act which could replace state
regulation in this area of medicine.117 The Model Act:
[P]roposes a special purpose license to practice medicine across
state lines upon application for the same from a person holding a
full license and unrestricted license to practice medicine in any
and all states . . . in which such individual is licensed, provided
there has not been previous disciplinary or other action against
the applicant by the state or jurisdiction.118
This federal model could pave the way to cut states entirely out of the
regulation of the practice of telemedicine within their borders.119 Although
previous versions of the Model Act were criticized for broad and vague
language and giving individual states too much room to regulate under the
Act,120 numerous state legislatures have already adopted similar legislation
based on the 1996 FSMB Model Act.121
113. Id.
114. See id.
115. See id.
116. See discussion infra Part IV.
117. FEDN OF STATE MED. BDS. OF THE U.S., REPORT OF THE AD HOC COMMITTEE ON
TELEMEDICINE: A MODEL ACT TO REGULATE THE PRACTICE OF MEDICINE ACROSS STATE
LINES (1996), http://www.fsmb.org/pdf/1996_grpol_Telemedicine.pdf [hereinafter FSMB
MODEL ACT]; see also E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at
243.
118. GOLDBERG & GORDON, supra note 23, at 6.
119. See U.S. DEPT OF COMMERCE, TELEMEDICINE REPORT TO CONGRESS (Jan. 31, 1997),
http://www.ntia.doc.gov/reports/telemed/legal.htm; see also Noah, supra note 87, at 169.
120. GOLDBERG & GORDON, supra note 23, at 6.
121. The Alabama, Tennessee, and Texas legislatures have already enacted statutes based
on the Model Act; several other states, including Maine, New York, and Vermont, are
considering its adoption. Id. at 7.
C. The Federal Government Could Pre-empt State Regulation

Through the Commerce Clause or the Spending Power.
The power to regulate the practice of medicine has traditionally been
left to the states under the Tenth Amendment of the Constitution; however,
the federal government has the authority to disarm the states of their power
to regulate telemedicine given its practice nationwide and across state
lines.122 Since recent technological advances have obliterated the
distinction between inherently national and traditionally local
activities, some scholars argue that the better way to regulate telemedicine
is to replace antiquated state regulatory laws with one federal licensure
scheme.123 Such scholars do not believe that states are capable of creating
individual licensure schemes that will enable the practice of telemedicine
across state lines.124 This Note argues that states are more than capable of
creating such a licensure scheme and the federal government should not
expand its commerce and spending powers to regulate telemedicine.125
Although states govern the practice of medicine as part of their police
powers to protect the health and safety of their citizens,126 Congress has
already deemed certain areas of healthcare to be part of interstate trade.127
Under the federal governments power [t]o regulate Commerce . . . among
the several states,128 federal statutes have been passed to create national
standards for limited areas of healthcare, such as the regulation of medical
devices.129
According to recent Supreme Court Commerce Clause
jurisprudence,130 the federal government may create a national telemedicine
122. See Joy Elizabeth Matak, Telemedicine: Medical Treatment via Telecommunications
Will Save Lives, but Can Congress Answer the Call?: Federal Preemption of State
Licensure Requirements Under Congressional Commerce Clause Authority & Spending
Power, 22 VT. L. REV. 231, 245 (1997).
123. Id. at 231.
124. See Noah, supra note 87, at 185-93.
125. See discussion infra Parts III.B.4, IV.
126. See discussion supra Part II.A.
127. Matak, supra note 122, at 245.
128. U.S. CONST. art. I, 8, cl. 3.
129. See Safe Medical Devices Act of 1990, Pub. L. No. 101-629, 104 Stat. 4511 (1990);
see also 42 U.S.C. 263b (1992) (amended 2004); 29 U.S.C. 654 (2000).
130. See United States v. Lopez, 514 U.S. 549, 558-59, 562 (1995) (describing the
specifications that federal legislation or regulation must meet to govern an area of law that is
traditionally local in nature; holding that the Gun-Free School Zones Act is unconstitutional,
as violative of the Commerce Clause, because [n]either the statute nor its legislative
history contain[s] express congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone (quoting Brief for United States at 5-6,
United States v. Lopez, 514 U.S. 549 (1995) (No. 93-1260) (alterations in original)).
licensing scheme if it can show that telemedicine falls under one of the
three categories of commerce power.131 The Court explains that:
Congress may regulate the use of the channels of interstate
commerce. . . . Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come only
from intrastate activities. Finally, Congresss commerce
authority includes the power to regulate those activities having a
substantial relation to interstate commerce, i.e., those activities
that substantially affect interstate commerce.132
If telemedicine falls under one of the three categories of commerce
power, then the federal government can regulate its practice.133
Some have argued that physicians practicing telemedicine are
instrumentalities of interstate commerce or persons or things in interstate
commerce.134 Since physicians practicing telemedicine transmit and receive
medical information across state lines, and providing medical services is a
form of commerce, the physicians act as instrumentalities of interstate
commerce.135 Under this scheme, and according to the Supreme Courts
interpretation of the Commerce Clause, the federal government could
constitutionally regulate the practice of telemedicine across state lines.136
However, an alternative argument under Lopez is that the Court may find
that there are inconclusive findings regarding the effects of telemedicine
upon interstate commerce and, hence, it is unconstitutional for the federal
government to regulate telemedicine through the Commerce Clause.137
Congresss potential power to regulate the practice of telemedicine,
and hence the licensing requirements, is not restricted to the Commerce
Clause.138 The Spending Clause grants Congress the Power To lay and
collect Taxes . . . to pay the Debts and provide for the common Defense
and general Welfare of the United States.139 The Supreme Court has held
that the scope of [this power] is quite expansive . . . . It is for Congress to
decide which expenditures will promote the general welfare.140 If
Congress were to find that the regulation of the practice of telemedicine
131. See Perez v. United States, 402 U.S. 146, 150-51 (1971).
132. Lopez, 514 U.S. at 558-59 (citations omitted).
133. See id.
134. See Matak, supra note 122, at 247-48.
135. See id. at 247.
136. See id.; see also Lopez, 514 U.S. at 558-59.
137. See Lopez, 514 U.S. at 562-63.
138. Matak, supra note 122, at 248-49.
139. U.S. CONST. art. 1, 8, cl. 1.
140. Buckley v. Valeo, 424 U.S. 1, 90 (1976).
provides for the general welfare of the citizens of this country, then
presumably it could regulate the practice under the Spending Clause.
Congress cannot, however, simply commandee[r] the legislative
processes of the States.141 Congress may encourage states to regulate by
offering monetary incentives under its broad spending power.142 The
federal government has the authority to legislate regarding the practice of
telemedicine if it can show that the federal conditions are rationally
related to legitimate federal interests in the particular federal funding
program.143 Currently, the only model we have for federal regulation, the
FSMB Model Act, contains no reference to providing monetary
compensation to the states to follow a federal-model scheme.144 If the
Model Act is enacted under the spending power, the Court would likely
find it unconstitutional because it commandeers state action.145
Professional licensure has traditionally been a matter left to the
regulation of the states.146 Given the increasing variability among state
regulatory schemes, particularly in their definitions of the practice of
medicine and their treatment of licenses for the practice of telemedicine,
authors have recommended that the federal government play a role in
regulating this area.147 However, the states do not wish to cede control to
the federal government through the Commerce Clause and the Spending
Clause,148 and they must promulgate new regulations to unlock[]
telemedicines vast potential.149
141. New York v. United States, 505 U.S. 144, 161 (1992) (alteration in original)
(quoting Hodel v. Va. Surface Mining & Reclamation Assn, Inc., 452 U.S. 264, 288
(1981)).
142. Id. at 166-67. But see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (explaining
various limitations on the Spending Clause powers).
143. Anthony B. Ching, Travelling Down the Unsteady Path: United States v. Lopez,
New York v. United States, and the Tenth Amendment, 29 LOY. L.A. L. REV. 99, 132
(1995).
144. See FSMB MODEL ACT, supra note 117.
145. Cf. Ching, supra note 143, at 117, 123.
146. See E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 235.
147. See id.
148. See INSTITUTE OF MEDICINE, supra note 19, at 93.
III. CURRENT STATE REGULATION SCHEMES
A. The Massachusetts Licensure Model

The Massachusetts legislature, pursuant to the power granted by the
Tenth Amendment of the United States Constitution,150 vested the power to
regulate the practice of medicine in a board of registration in medicine.151
Under this statutory authority, the Massachusetts Board of Registration in
Medicines (BORM) purpose is to provide substantive standards
governing the practice of medicine.152 The BORM defines the practice of
medicine as:
[T]he following conduct, the purpose or reasonably forseeable
[sic] effect of which is to encourage the reliance of another
person upon an individuals knowledge or skill in the
maintenance of human health by the prevention, alleviation, or
cure of disease and involving or reasonably thought to involve an
assumption of responsibility for the other persons physical or
mental well being: diagnosis, treatment, use of instruments or
other devices, or the prescription or administration of drugs for
the relief of diseases or adverse physical or mental conditions. A
person who holds himself out to the public as a physician . . .
and who also assumes the responsibility for another persons
physical or mental well being, is engaged in the practice of
medicine.153
The BORM does not consider the unlawful practice of medicine to
include conduct of the type described above lawfully engaged in by
persons licensed by other boards of registration with authority to regulate
such conduct.154 This means that a physician who is properly licensed in
his or her home state may lawfully practice medicine in Massachusetts if he
or she obtains one of the four categories of Massachusetts licenses.155 The
four types of licenses are: full, limited, temporary, and restricted.156
150. See Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975); Dent v. West Virginia, 129
U.S. 114, 122-23 (1889).
151. See MASS. GEN. LAWS ch. 112, 5 (2006) (The board shall, after proper notice and
hearing, adopt rules and regulations governing the practice of medicine in order to promote
the public health, welfare, and safety and nothing in this section shall be construed to limit
this general power of the board.).
152. 243 MASS. CODE REGS. 2.01(1) (2006).
153. Id. at 2.01(4).
154. Id.
155. See id.
156. See id.
The BORM grants licenses to both in- and out-of-state physicians

based on specific criteria in the regulations.157 The board may issue a
limited license to a medical student or other person who is completing their
medical training.158 A limited license expires after one year and is issued
for a maximum of a six-year training period, and the limited licensee may
practice medicine only under the supervision of a full [Massachusetts]
licensee.159 A temporary license is granted to a physician licensed in
another state who has been appointed as a temporary faculty member of a
medical school or hospital.160 The BORM also grants temporary licenses to
physicians enrolled in a continuing medical examination course in the state
or to physicians acting as a substitute to a patients Massachusetts licensed
primary care physician for no more than three months.161 All other
physicians providing patient care in the state must obtain a full license to
practice medicine.162
1. Full Licensure Requirement for Physicians Practicing

Telemedicine
In accordance with Massachusetts goals of protecting the health and
safety of its citizens, the state has currently decided not to include a less
restrictive licensing requirement for out-of-state physicians practicing
telemedicine within its borders.163 A states goals in requiring medical
licenses also include protecting [the] public against [an] incompetent or
unethical practitioner[,] . . . [s]tandardization of health personnel by
specifying entry qualifications and scopes of functions[,] . . . [and]
[s]etting . . . guidelines for legal responsibility and protection of health
personnel.164 These concerns have slowed the states adoption of an
157. See id. at 2.02 (describing requirements for each of the four categories of licenses
that physicians may obtain to practice medicine in the state).
158. See 243 MASS. CODE REGS. 2.02(8) (2006).
159. Id. at 2.02(10).
160. MASS. GEN. LAWS ch. 112, 9B (2006).
161. Id.
162. See MASS. GEN. LAWS ch. 112, 2 (2006); 243 MASS. CODE REGS. 2.02(1)-(5)
(2006); see also Frequently Asked Questions for Physicians, http://www.massmedboard
.org/physician/ physician_faq.shtm (last visited Dec. 4, 2007).
163. Frequently Asked Questions for Physicians, http://www.massmedboard.org/
physician/physician_faq.shtm (explaining that full licensure is required in Massachusetts for
those practicing telemedicine in the state) (last visited Dec. 4, 2007).
164. Huie, supra note 32, at 396 (first and second alterations in original) (quoting DIV. OF
ALLIED HEALTH PROFESSIONS ET AL., REPORT TO THE CALIFORNIA STATE LEGISLATURE ON
THE DESIRABILITY OF CERTIFYING CURRENTLY NON-CERTIFIED CATEGORIES OF PERSONNEL
PROVIDING HEALTH SERVICES OF A TECHNICAL NATURE 3 (Feb. 1977), in 4 OCCUPATIONAL
LICENSING IN CALIFORNIA (1978)).
alternative, less restrictive, licensure model to facilitate the practice of

telemedicine.165
As physicians all over the country practicing telemedicine have come
to understand, state licensure requirements for physicians create restrictions
in the healthcare field as much as they encourage safety.166 Current state
licensure approaches are problematic because they restrict the distribution
of physicians amongst the states and restrict the flexibility in scopes of
practice.167 They also increase the cost of healthcare by decreasing
competition between physicians and increasing their salaries.168
The restrictions created by a requirement for full licensure might
influence physicians practicing telemedicine to choose to operate in another
state where licensure is less difficult to obtain.169 States requiring full
licenses will find they are unable to take advantage of the benefits that
telemedicine has to offer.170 These states, including Massachusetts, must
change their regulatory schemes to confront these restrictions and improve
healthcare by allowing the expansion of telemedicine.171
In order for Massachusetts to facilitate the practice of telemedicine
within its borders, the regulations need to be amended.172 Because the
BORM, a state administrative agency, is vested with broad authority to
effectuate the purposes of [its enabling] act the validity of a regulation
promulgated thereunder will be sustained so long as it is "reasonably
related to the purposes of the enabling legislation."173 Courts favor the
validity of the administrative action and will not declare it void unless the
regulations cannot by any reasonable construction be interpreted in
harmony with the legislative mandate.174 The BORM, therefore, has broad
discretion to establish the way it will regulate the practice of medicine and
165. See discussion supra Part III.A.

167. Id. at 396-97.
168. Id.
169. See Alison M. Sulentic, Crossing Borders: The Licensure of Interstate Telemedicine
Practitioners, 25 J. LEGIS. 1, 23 (1999).
170. See Zimmerman et al., reprinted in THE HEALTH CARE E-COMMERCE REVOLUTION:
LEGAL, FINANCIAL & REGULATORY STRATEGIES, supra note 28, at 67.
171. States, like Ohio, have created specific regulations to facilitate the practice of
telemedicine. OHIO REV. CODE ANN. 4731.296 (West 2004) (granting a [t]elemedicine
certificate to physicians outside the state practicing medicine through the use of any
communication, including oral, written, or electronic communication in the state).
172. See GOLDBERG & GORDON, supra note 23, at 3.
173. Levy v. Bd. of Registration & Discipline in Med., 392 N.E.2d 1036, 1039-40 (Mass.
1979) (quoting Consol. Cigar Corp. v. Dept of Pub. Health, 364 N.E.2d 1202, 1210 (Mass.
1977)); see also MASS. GEN. LAWS ch. 112, 5 (2006).
174. Levy, 392 N.E.2d at 1040.
physician licenses.175 The language used to amend the regulations of the

practice of telemedicine must clearly validate the authority to practice
telemedicine in Massachusetts by out-of-state physicians.176
B. Alternative State Licensure Models
1. Regulations with Explicit Telemedicine Exceptions

The states have chosen various ways to regulate telemedicine.177 If a
physician is already engaged in or is planning to engage in the practice of
telemedicine outside of his own state, he must [either] comply with the
[foreign] states licensing requirements or find an exception in [that states]
law that permits him to offer his services.178
The Ohio legislature confronted the issue directly and provided an
explicit and separate certificate for out-of-state physicians practicing
telemedicine in the state.179 The Ohio statute regulating telemedicine
defines it as the practice of medicine in this state through the use of any
communication, including oral, written, or electronic communication, by a
physician located outside [the] state.180
Although the licensure requirements for those out-of-state physicians
practicing telemedicine in the state are clear, they are still extensive.181 An
out-of-state physician is on notice that a license is required, and he or she
still must obtain a separate certificate from Ohio.182 The restrictive nature
of these requirements, while unambiguous, will not reduce the necessity of
a physician to obtain some form of license in each state they practice
medicine.183 When Massachusetts amends its regulations to reduce
licensure restrictions, it should not implement a scheme that would require
an out-of-state physician to obtain a second license.
175. See id.

176. See id.
177. See, e.g., GOLDBERG & GORDON, supra note 23, at 3.
178. Sulentic, supra note 169, at 20.
179. See OHIO REV. CODE ANN. 4731.296 (West 2004).
180. Id. 4731.296(A).
181. See id. 4731.296 (requiring the out-of-state physician to hold a current,
unrestricted license to practice medicine in another state, to practice principally in that state,
to meet the character and educational requirements for Ohio physicians, to acquire a special
activity certificate, and to subject him or herself to disciplinary action of the Ohio regulatory
board).
182. See id.
183. See id.
2. Consulting Exceptions Applicable to Telemedicine

Another way that states can allow telemedicine practitioners to
circumvent the full licensure requirement is by including a consultation
exception.184 Generally, under such an exception, a physician outside the
state can consult regarding a patient in the state without obtaining a license
in that state, if he or she is working with a lawfully licensed physician from
the patients state.185 A few states have very broad consultation
exceptions,186 while others restrict the exception by limiting the regularity
with which a consulting physician may have contact with those in the
state.187 These exceptions were meant to be used by physicians who
occasionally and irregularly provide telemedicine across state borders, not
as a solution to the state regulatory issues in telemedicine.188 Massachusetts
should adopt a comprehensive approach to regulate physicians who
practice telemedicine in the state, not a limited or temporary solution to the
problem.
Although Massachusetts has a consulting exception,189 it is unclear
whether this exception would allow physicians who are properly licensed
in the state in which they practice traditional medicine to practice
telemedicine across state lines into Massachusetts. The BORM has
unofficially stated that the consultation exception applies between
physicians in the same specialty, which seems to include out-of-state
physicians providing an in-state patient with a teleconsultation.190 In
direct contradiction to that statement, the BORMs website explains that all
185. See id.
186. See, e.g., PA. STAT. ANN. 422.16 (West 2003); MO. ANN. STAT. 334.010.3 (West
2001).
A physician located outside of this state shall not be required to obtain a
license when:
(1) In consultation with a physician licensed to practice medicine in this
state; and (2) The physician licensed in this state retains ultimate
authority and responsibility for the diagnosis or diagnoses and treatment
in the care of a patient located within this state . . . .
MO. ANN. STAT. 334.010.3 (West 2001).
188. See id. at 239-40.
189. See MASS. GEN. LAWS ch. 112, 2-8 (2006) (stating that the licensing requirements
shall not apply to a physician or surgeon resident in another state who is a legal practitioner
therein, when in actual consultation with a legal practitioner of the commonwealth or to a
physician authorized to practice medicine in another state, when he is called as the family
physician to attend a person temporarily abiding in the commonwealth).
190. See GOLDBERG & GORDON, supra note 23, at 4.
physicians practicing medicine in Massachusetts, without a temporary or

limited license, must be fully licensed in the Commonwealth.191 New
regulations are needed to either clarify this point or include explicit
language indicating the states policy on licensing requirements for out-of-
state physicians practicing telemedicine within the state.
3. Other Limited Exceptions

Yet another alternative to individual state licensure policies that some
states have chosen to adopt is a reciprocity agreement.192 Under this
approach, states that maintain equivalent licensing standards enter into
agreements that allow a physician to obtain additional licenses in any of the
states which are parties to the agreement.193 This additional license allows
the out-of-state physician to practice in the patients state to the extent that
the second state would allow one of its own in-state physicians to practice
medicine.194 The advantages of this process include encouraging licensing
across state borders and promoting relationships between physicians across
state lines; however, obtaining a reciprocal license can still be expensive
and time consuming.195 Moreover, these agreements are usually only
between two states and as such do not facilitate a national flow of the
practice of telemedicine.196 It would be most beneficial for states to adopt a
regulatory model that allows them to maintain control over the practice of
telemedicine while promoting national growth of the industry.197
A handful of states have also created a special license for out-of-
state physicians who wish to provide telemedicine services in their state.198
A special license is issued by the state licensing board to an out-of-state
physician to practice medicine in the state only to the extent that it is
consistent with that states definition of the practice of medicine, which
generally includes telemedicine.199 Such regulations are advantageous
because they specifically define the services that a physician out of state
may provide to an in-state patient, and thus provide more certainty than the

physician/physician_faq.shtm (last visited Dec. 4, 2007).
193. See id.
194. See id.
195. Id.
196. Id.
197. See discussion infra Part IV.A.
198. E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 241; see also ALA.
CODE 34-24-500 to 34-24-502 (LexisNexis 2002); 225 ILL. COMP. STAT. ANN. 60/49-5
(West 1998).
consulting exception.200 However, the need to obtain a special license

may place just as many burdens on out-of-state physicians as having to
obtain a full license, particularly for physicians who wish to practice
telemedicine in several states.201
4. National Council of State Boards of Nursing and the Nurse

Licensure Compact
Another alternative model for licensure that the state should consider
for physicians practicing telemedicine is a system similar to the one used
by nurses for interstate licensure.202 States have traditionally been, and
remain, responsible for licensing nurses, who similar to physicians,
participate in patient care in multiple states and across state lines.203 In
1998, the National Council of State Boards of Nursing drafted an interstate
licensure compactthe Nursing Licensure Compact (NLC).204
Under this model, a registered nurse or licensed practical nurse
obtains a license in his or her home state and that license is recognized as a
multi-state license enabling him or her to practice in any state that has
adopted the NLC.205 The compact places responsibility on the nurse to
abide by the specific laws of the state in which the patient is located,206 and
would eliminate the burdensome task that physicians face meeting separate
licensing requirements of the different states in which they practice.207
About half of the states have adopted the NLC.208 This example of a
multi-state licensure scheme presents a more viable model for promoting
the interstate practice of telemedicine than the FSMBs Model Act
previously discussed.209 The NLC allows states to enforce their own
individual practice standards for nurses who apply for an initial license
within their borders while respecting the licensing standards of sovereign
200. See id.

201. See id. at 242.
202. See id. at 244.
203. Id.
204. E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 244 & n.33.
205. See id. at 244.
206. Id.
207. See id. at 244-45.
208. Id. at 245. Both Maine and New Hampshire are among the states that have adopted
the Nursing Licensure Compact, and Colorado has enacted the compact but has not
implemented it. See National Council of State Boards of Nursing, Participating States in the
NLC, http://www.ncsbn.org/158.htm (last visited Dec. 4, 2007).
209. E-HEALTH BUSINESS AND TRANSACTIONAL LAW, supra note 12, at 244; see also
discussion supra Part II.B.1.
states for those nurses who choose to practice across state lines.210
One drawback to the model is that the non-licensing state lacks the
authority to discipline a nurse for her actions within its borders.211
However, a state physician licensure compact can include a procedure to
allow the patients state to be able to discipline a physician regardless of
which state he or she obtained his or her original license. Overall, [t]he
nurse-licensure-compact approach ensures greater uniformity in regulation
and would permit full multi-state scope of practice in states other than the
physicians home state.212
IV. REFORM OF MASSACHUSETTS REGULATIONS TO EASE THE MULTI-

STATE PRACTICE OF TELEMEDICINE
A. Barriers to the Practice of Telemedicine under Current

Massachusetts Regulatory Scheme
As illustrated above, numerous states, realizing the implications the
practice of telemedicine has on their regulatory schemes, have adopted
changes to facilitate the national flow of telemedicine.213 However, the
states are far from creating a fluid regulatory model that would ensure the
ability to maintain control of the practice of telemedicine and allow
telemedicine services to be accessible to patients regardless of state
borders. In fact, currently Massachusetts statutory and regulatory scheme
does not allow physicians from outside the state to practice telemedicine on
patients in the state without a full medical license.214
Massachusetts, as a leader in healthcare,215 has already started
integrating telemedicine techniques into healthcare practices in the state.216
Massachusetts patients benefit from increased accessibility to healthcare
provided by telemedicine.217 In order for Massachusetts to maximize the
211. Id.
212. See id.
213. See discussion supra Part III.B.
physician/physician_faq.shtm (last visited Dec. 4, 2007).
215. See supra note 30 and accompanying text.
216. See supra note 44 and accompanying text; see also Center for Connected Health,
http://www.connected-health.org/programs.aspx (last visited Dec. 4, 2007) (describing the
variety of healthcare programs using technology, including cardiac care, dermatology,
diabetes care, wound care, medication adherence, e-visits, wellness and prevention, and
remote consultation, offered through the Center for Connected Health, an organization
linked with the physicians of Harvard Medical Center and Partners HealthCare).
217. See supra note 44 and accompanying text; see also Liz Kowalczyk, Employees to
benefits that its citizens can obtain from technological advances in

healthcare, it is imperative that the state amend its current restrictive
licensure requirements.218 By altering its regulation scheme dealing with
physician licensure, as described below, the state could utilize the programs
it already uses to treat other underserved areas of the country and allow
patients in-state to receive care from the best specialists in the country.219
B. Proposed Amendments to the Massachusetts BORM Regulations

Recently, the BORM proposed new regulations which more clearly
indicate the current Massachusetts policy and how the state chooses to
govern out-of-state physicians practicing telemedicine within the state.220
The BORM has interpreted that the present statutory and regulatory
licensure scheme requires all physicians practicing medicine in
Massachusetts require a full license, unless they are practicing pursuant to
one of the limited exceptions.221 Significantly, the regulations proposed by
the BORM have changed the definition of the practice of medicine to
include:
(dd) offering or undertaking to perform any surgical operation
upon any person; performing an act that is part of patient care at
an originating site in this state, including but not limited to the
performance or interpretation of a radiological examination, or
the preparation or interpretation of pathological material, that
would affect the diagnosis or treatment of the patient, through
any medium, including but not limited to an electronic medium;
(ee) rendering treatment to a patient located at an originating site

within this state by a physician at a distant site located either
within this state or outside this state as a result of transmission of
Get an Online Checkup: Care Provider, EMC Will Test a Program to Cut Health Costs,
BOSTON GLOBE, Mar. 3, 2007, at 1A (explaining how the corporation EMC has teamed up
with Partners HealthCare to improve employee health and reduce medical costs by utilizing
a special device to monitor blood pressure which has a special blood pressure cuff that
transmits the readings using wireless technology directly to researchers and physicians).
218. See discussion supra Part III.A.1 (noting that out-of-state physicians must either
obtain a full license to practice in Massachusetts or practice pursuant to one of the limited
statutory exceptions, which do not include an exception for telemedicine).
219. See discussion infra Part IV.B.
220. See Board of Registration in Medicine, General Provisions, 243 MASS. CODE REGS.
1.00-7.05 (proposed Mar. 21, 2007),
available at http://www.massmedboard.org/ public/pdf/draft_regs_03_21_07.pdf.
221. See Frequently Asked Questions for Physicians, http://www.massmedboard
.org/physician/physician_faq.shtm (last visited Dec. 4, 2007); see also discussion supra Part
III.A.1.
individual patient data by electronic or other means from the

originating site to such physician or his agent at the distant
site . . . .222
Therefore, in the proposed regulations the Board has specifically
defined the practice of medicine to include services through an electronic
medium or from a distant site.223 This means that physicians from
outside of Massachusetts, who are not licensed in Massachusetts and
perform the telemedicine services described above on patients in the state,
are subject to discipline for practicing medicine without a license.224 With
the proposed regulations, the BORM has only clarified the definition of the
practice of medicine which demonstrates the states current mindset
regarding out-of-state physicians practicing medicine on Massachusetts
citizens without being licensed by the state.
Although the proposed regulations illuminate the definition of the
practice of medicine within the state, they do not address the problems that
telemedicine implicates, nor do they attempt to create an exception for out-
of-state physicians practicing telemedicine in Massachusetts.225 The
regulations do state that [t]he practice of medicine does not include
conduct of the type described above when engaged in by persons
authorized by statute or regulation to engage in such conduct and licensed
by other boards of registration authorized to regulate such conduct.226
Thus, if Massachusetts adopted a statutory model specifically authorizing
the practice of telemedicine, which supersedes this regulation, a physician
licensed out of state could legally practice medicine.
The proposed regulations continue to inhibit the practice of
telemedicine within Massachusetts and are too strict to facilitate the
practice of telemedicine across state lines. The regulations are not an
effective scheme because they keep patients from accessing medical care
available in other states absent their ability to travel away from their own
homes and communities.227 Massachusetts must amend its licensing
222. Board of Registration in Medicine, General Provisions, 243 MASS. CODE REGS. 6.01
(proposed Mar. 21, 2007), available at http://www.massmedboard.org/public/pdf/draft_regs
_03_21_07.pdf.
223. Id.
224. See MASS. GEN. LAWS ch. 112, 6 (2006).
225. See Board of Registration in Medicine, General Provisions, 243 MASS. CODE REGS.
1.00-7.05 (proposed Mar. 21, 2007), available at http://www.massmedboard.org/public/
pdf/draft_regs_ 03_21_07.pdf.
226. Id. at 6.01(hh).
227. Matak, supra note 122, at 243 (quoting Telemedicine: Statement: Wyden (D-OR):
Bring Telemedicine Technology to the American People, http://www.arentfox.com/telemed/
telemed.wyden.html).
requirements such that they do not create an impenetrable state border

but instead allow patients to access healthcare, as technology would allow
them to, at a national level.228
C. Massachusetts Should Lead the Way for Adoption of a Model

Similar to the Nursing Licensure Compact to Regulate the
Practice of Telemedicine Among States.
The best way for Massachusetts to amend its state licensing
requirements would be to create a mutual recognition compact for
physicians practicing telemedicine across state lines, similar to the NLC.229
This regulatory model offers many advantages over the other alternative
state regulation schemes, and even over a federal model such as the
FSMBs Model Act.230 Most importantly, a mutual recognition model
leaves states with the power to define standard practices that promote the
health and safety of their citizens, and it provides ease for physicians
practicing telemedicine such that telemedicine can efficiently expand to a
national practice.231
This model, which would mutually recognize out-of-state licenses for
physicians practicing telemedicine across state lines between the states
adopting the scheme, should be adopted in Massachusetts and in other
states across the nation. A model of this nature, if implemented on a
national scale, would prove to the federal government that states are
capable of creating a workable alternative, and that they should retain
control of regulation of the practice of telemedicine.232 It is imperative that
states work together to form a compact similar to the NLC in order to
enhance the national practice of telemedicine, while maintaining control of
the right to regulate the practice of this area of medicine, which affects the
public health, safety, and welfare of its citizens.233
If Massachusetts adopts a mutual recognition model, the state would
still remain in control of practice standards for physicians who maintain
their license to practice traditional medicine in the state.234 In addition, the
mutual recognition model would make it effortless for physicians from
other states that choose to adopt the compact to offer telemedicine services
228. See id.

230. See discussion supra Parts II.B.1, III.B.
231. See discussion supra Parts III.A, III.B.4; see also CENTER FOR TELEMEDICINE LAW,
TELEMEDICINE LICENSURE REPORT 6-7 (2003), ftp://ftp.hrsa.gov/telehealth/licensure.pdf
(discussing the benefits of a mutual license regulation system as it pertains to nurses).
233. See discussion supra Parts III.A, III.B.4.
to Massachusetts citizens because they would not need to obtain additional

licenses.235 This state licensure model allows patients and physicians alike
to easily take advantage of all of the benefits of telemedicine, including
increased accessibility to and speed of healthcare, as well as decreased
costs.
The NLC has one flaw in that it does not allow the state in which the
patient is located to discipline a nurse who has not obtained his or her
primary license from that state.236 Keeping this in mind, Massachusetts
should implement a mutual recognition compact which includes explicit
regulations on how an out-of-state physician can be disciplined in
Massachusetts. These regulations should lay out how a state would obtain
jurisdiction over the out-of-state physician and which states licensing and
practice standards would apply, or in the alternative, offer a dual
jurisdiction discipline system. The compact should specifically state that it
supersedes all state statutory and regulatory law dealing with physician
licensure in the area of telemedicine to avoid conflict, and provide clarity
and ease for state enforcement.237
V. CONCLUSION
As a leader in healthcare, Massachusetts must create a new statutory
and regulatory scheme dealing with physician licensure such that the
national practice of telemedicine is facilitated. Massachusetts patients and
physicians alike will reap the benefit of increased speed and efficiency and
decreased cost of healthcare that telemedicine offers. The best model,
which allows states to maintain significant control over the practice of
telemedicine in their state, is a mutual recognition compact similar to the
NCL. It is imperative that states maintain control over regulation of
telemedicine to ensure the health and safety of their citizens.238
Massachusetts has the opportunity to lead the way by implementing this
regulatory scheme which addresses and solves the licensure issues that
telemedicine creates when practiced across state lines.
235. See id.

236. Id.
237. See CTR. FOR TELEMEDICINE LAW, TELEMEDICINE LICENSURE REPORT 6-7 (2003),
ftp://ftp.hrsa.gov/telehealth/licensure.pdf.
238. See Janice Robertson, Physician Licensure: An Update on Trends, AM. MED. ASSN,
http://www.ama-assn.org/ama/pub/category/2378.html (last visited Dec. 4, 2007) (indicating
that the American Medical Association supports state regulated licensure of physicians even
in the context of telemedicine).

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EDIT 1/7/2008 10:28:57 PM

196 NEW ENGLAND LAW REVIEW [Vol. 42:195

alternative to federal regulation. It is imperative for Massachusetts to play a

[W]e should connect every hospital to the Internet, so that doctors

2007] TELEMEDICINE REGULATION 197

prevention, and the genetics-based pharmacology movement are other

6. See id. at 62-75.

198 NEW ENGLAND LAW REVIEW [Vol. 42:195

Telemedicine also makes patient care and treatment more efficient by

17. See id.

2007] TELEMEDICINE REGULATION 199

State regulations must be amended to facilitate the practice of

28. Edward M. Zimmerman et al., Telemedicine Is Redefining the Delivery of Health

200 NEW ENGLAND LAW REVIEW [Vol. 42:195

discusses the constitutional power of the states to regulate the practice of

A. The Definition of Telemedicine

35. EMERY, supra note 8, at 3.

2007] TELEMEDICINE REGULATION 201

teledermatology and telepsychiatry, use video conferencing to replace

B. The Benefits Offered by Telemedicine

1. Rural Patients Benefit from Increased Access to Physicians.

43.See id. at 62, 64.

202 NEW ENGLAND LAW REVIEW [Vol. 42:195

disadvantaged in their access to quality healthcare since physicians are

2007] TELEMEDICINE REGULATION 203

feel less isolated by allowing physician consultation using

2. Decreasing the Cost of Healthcare

204 NEW ENGLAND LAW REVIEW [Vol. 42:195

cost.76 Because telemedicine increases healthcare accessibility, the volume

3. Increasing the Speed of Healthcare

76. Id. at 392.

2007] TELEMEDICINE REGULATION 205

II. THE CONSTITUTIONAL POWER OF THE STATES TO DEFINE PHYSICIAN

A. The Tenth Amendment Reserves Licensure Power to the States.

86. See id.

206 NEW ENGLAND LAW REVIEW [Vol. 42:195

protection of public health and safety, a function traditionally reserved to

1. Massachusetts Interpretation of the Power to Regulate

92. See supra notes 89-91 and accompanying text.

2007] TELEMEDICINE REGULATION 207

medicine through licensing requirements and disciplinary measures.101 The

As recently as 2005, Massachusetts courts have affirmed that a licensed

B. The Joint Working Group of Telemedicines Report to Congress

1. Joint Working Groups Suggested Solutions for Regulating the

208 NEW ENGLAND LAW REVIEW [Vol. 42:195

(2) endorsement of practitioners licensed in states with

(3) mutual recognition by states of the policies and processes of

(4) reciprocity agreements, in which individual states would

(5) registration by licensees wishing to practice into another state

(6) limited licensure, which would require the practitioner to

(7) the adoption of a national licensure system at the state or

109. Communications Act of 1934, 47 U.S.C. 609 (1984), amended by

2007] TELEMEDICINE REGULATION 209

licenses of physicians from the group of states in the agreement.113 These

210 NEW ENGLAND LAW REVIEW [Vol. 42:195

C. The Federal Government Could Pre-empt State Regulation

2007] TELEMEDICINE REGULATION 211

212 NEW ENGLAND LAW REVIEW [Vol. 42:195

2007] TELEMEDICINE REGULATION 213

III. CURRENT STATE REGULATION SCHEMES

A. The Massachusetts Licensure Model

214 NEW ENGLAND LAW REVIEW [Vol. 42:195

The BORM grants licenses to both in- and out-of-state physicians