Interstate Enforcement Issues
The concern with licensing remote practitioners who do not have a presence in the state involves both considerations of quality control and trade restrictions. Assuming that the practitioner is properly licensed in a remote state, the history of interstate enforcement of state regulations is not promising: it is very difficult to get a state agency to act on out-of-state complaints or help with interstate enforcement actions. As an example, even with massive federal intervention, it is still difficult to get child support orders enforced on out-of- state parents. This is understandable because most state agencies are underfunded and understaffed. They have to direct their primary efforts to the citizens of their own state. Given that most state medical licensing agencies are unable to manage the complaints in their own states, it is unrealistic to assume they can cooperate effectively in the interstate regulation of telemedicine.
The darker side of telemedicine is already obvious on the Internet—physicians running Internet sites to sell prescriptions for popular drugs such as Viagra. This is possible because the drug enforcement laws are really only intended to manage the distribution of controlled substances, i.e., psychoactive drugs such as tranquilizers and narcotics. There is little concern with or regulation of the distribution of other drugs, which has been tacitly endorsed by the federal regulations allowing the importation and personal use of unapproved substances and drugs diverted from commercial pharmacy channels. The proper method of enforcement against these providers is by the licensing agency in their own state. The pharmacy-licensing agencies in the states where the prescriptions are filled should also enforce state law prohibitions on filling prescriptions by out-of- state physicians. The difficulty in these enforcement actions is that unethical telemedicine providers do not have physical offices and do not generate the medical records that are at the heart of most medical enforcement actions.
The most troubling aspect of telemedicine, especially Internet medicine, is that it is very difficult to determine if the provider is licensed anywhere, or is even medically trained. When a kid in high school can produce a professional appearing WWW (World Wide Web) site, all the traditional cues that indicate a legitimate practitioner disappear. Even insurance coverage is not a good indicator as more people turn to cash-based medical care, either because of the referral restrictions in their health plans or to get alternative medicine. In theory, consumers could call the licensing agency to see if someone with that name was licensed, but they would have to know the state of licensure and have some way to verify that the Internet physician was not an impostor. Even these protections fail for offshore operations.