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Dobbs and Telehealth: What’s the Impact?

While BPC does not focus on the policy issues of abortion itself, the Dobbs decision will have an impact on health policy writ large. Abortion bans, regardless of how they are constructed, will have broader ramifications on all aspects of health care. For instance, many legal scholars and advocates are debating the legality of state telehealth policies that either restrict or enhance prescribing medication abortion and whether federal law can preempt or influence state laws.

Dobbs has already spurred high-profile discussions on its effect on everything from insurance to medical education to digital health apps. However, some effects will not be as evident immediately. Take for example state licensure laws, an area that we have explored as part of our ongoing digital and telehealth policy work. In November 2021, BPC released a report analyzing how states and the Centers for Medicare and Medicaid Services temporarily waived licensing rules to help promote telehealth during the COVID-19 pandemic. But by the end of 2021, only a handful of states had made these waivers permanent, which can be a barrier to telehealth adoption.

While telehealth encounters often happen intrastate, they also occur interstate as health professionals in one state treat patients in another. While the interaction is virtual, the delivery of care occurs where the patient is located so that state’s laws govern the practice of medicine. Just as a doctor could not drive into another state and set up shop without being properly licensed in the new state, a doctor cannot “beam” into another state via the magic of the internet and practice virtually without a license.

Interstate compacts have emerged to develop national—if not federal—policies to license health professionals more efficiently in multiple states. In fact, the Constitution explicitly refers to compacts and allows states to utilize them to achieve certain policy goals. Prior to the COVID-19 pandemic, states were forming compacts for licensing for a variety of health professionals in hopes of addressing workforce shortages.

The various health professional compacts work differently. Joining a compact does not necessarily create reciprocity between member states. The Interstate Medical Licensure Compact expedites licensing applications for non-resident physicians who want to practice—whether in-person or virtually—in another state participating in a compact. Further, compacts may not waive a states’ requirements to maintain a license by taking continuing medical education or to pay licensing fees.

Separate from a compact, licensing agencies share disciplinary actions so that a bad actor does not try to evade a license revocation by moving to another state. The Federation of State Medical Boards maintains a database for physician licensing so that all states can be alerted of disciplinary actions. While this arrangement is not a perfect solution for telehealth, it can be a step forward for many communities and the health professionals who serve them. For instance, in the Washington, DC metro area, Maryland and the District of Columbia have joined the physician compact, but Virginia has not. This discrepancy adds confusion and a layer of complexity for professionals who practice in each jurisdiction. (The three jurisdictions are considering a regional agreement.)

Streamlining licensure is a key goal for promoting telehealth, but anything that creates uncertainty instead adds friction to a process that states and health professionals are striving to make more seamless.

Since Dobbs was decided, there has been much confusion how a disciplinary action in one state could jeopardize a practitioner’s license in other states. For instance, a practitioner may reside and mainly practice in a state that does not have abortion restrictions but is licensed and sees patients in another state that banned abortion. If that practitioner violates the terms of the abortion ban, that state could institute disciplinary action for his or her license. That state’s disciplinary action could trigger in turn a review in every state where the physician holds a license. While those additional reviews may not lead to anything, especially in states that maintain abortion’s legality, such situations can be stressful and costly while being resolved.

Some states are seeking to extend their abortion laws beyond their borders. Some legislatures are debating bills that would criminalize not only a resident’s out-of-state abortion but also assistance, which could include counseling and referrals. In response, other states are looking at passing “shield laws” that would protect health professionals from out-of-state prosecutions. However, there is little that can be done to prevent states from revoking licenses they granted to offending out-of-state professionals that violated their abortion restrictions.

The post-Dobbs policy debates may not directly affect interstate licensing nor states’ decisions whether they will or will not join compacts, but it may make some health professionals, particularly those practicing in reproductive health and OB-GYN care, less interested in cross-state licensing and practice if they may be subject to disciplinary action. Such a possibility would be a loss to telehealth’s ability to help solve some pressing access problems, particularly for patients in rural communities or those experiencing high-risk pregnancies.

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