Should the Feds Regulate Physicians’ Scope of Practice?

33919068 - doctor typing on a computer keyboard at officeWriting in the Wall Street Journal, economics professor Shirley Svorny of California State University, Northridge, and the Cato Institute argues that Congress should use the power granted by the U.S. Constitution’s Commerce Clause to pre-empt states’ historical power to regulate physicians’ scope of practice:

Telemedicine has made exciting advances in recent years. Remote access to experts lets patients in stroke, neonatal and intensive-care units get better treatment at a lower cost than ever before. In rural communities, the technology improves timely access to care and reduces expensive medevac trips. Remote-monitoring technology lets patients with chronic conditions live at home rather than in an assisted-living facility.

Yet while telemedicine can connect a patient in rural Idaho with top specialists in New York, it often runs into a brick wall at state lines. Instead of welcoming the benefits of telemedicine, state governments and entrenched interests use licensing laws to make it difficult for out-of-state experts to offer remote care.

(S. Svorny, “Telemedicine Runs Into Crony Doctoring,” Wall Street Journal, July 22, 2016)

Professor Svorny urges Congress to pass a law allowing interstate portability of licensure. The state where a physician practices, not where the patient stands (or sits or lies), would be the locus of regulatory control. That is, Idaho would lose its sovereign power to prevent New York-licensed physicians from providing telemedicine services to Idaho patients.

Professor Svorny dismisses the Interstate Medical Licensure Compact, which I have praised. This approach preserves state sovereignty by allowing states to join a compact which grants physicians a license to practice in all states belonging to the compact.

The notion that Congress can use its power to impose portability among the states without doing violence to federalism has become somewhat widespread among libertarian and conservative thinkers. (The proposal to allow buying health insurance “across state lines” is similar.) However, I think it is a risky path forward.

First, even if Congress could limit itself to legislating portability of state licenses across the country, how exactly does that increase liberty? In the vignette described above, Congress would take away the sovereign power of the Idaho legislature and give it to the New York legislature! It makes for a confounded federalism.

Second: Could Congress really limit itself to legislating portability of physician licensure? In the time it took me to scribble this short article, I thought of at least one other issue that would (legitimately) have to be brought into the mix: medical malpractice, which is governed by state law. And I am not a lawyer!

Once Professor Svorny’s bill had made it through the countless hours of committee hearings and amendments required to pass any law, we would likely end up with a bill a few hundred pages long that would require a new federal agency to administer and regulate.

It is true that state licensure of physicians imposes costs and hassles on the practice of telemedicine. However, states are slowly improving portability among themselves, according to the American Telemedicine Association (State Telemedicine Gaps Analysis: Physician Practice Standards & Licensure, pp. 10-11).

The idea that congressional intervention will reduce these costs represents the triumph of hope over experience. Better to let the challenges of regulating the scope of practice of telemedicine to be addressed from the bottom up, not the top down.

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