Why the State You Are Sitting In Is the One That Governs

Answer first: these statutes attach to the patient's location

A remote health business has several plausible addresses. There is the state where the parent company is incorporated. The state where the professional entity is organized. The state where the pharmacy building sits. The state where the clinician happens to be sitting. And the state where the patient is.

Read across the six statutes quoted in this file, and the same answer keeps appearing. The connecting factor is the last one.

Washington's telemedicine reimbursement statute defines the term in a single line. Originating site means the physical location of a patient receiving health care services through telemedicine. Distant site means the site at which a physician or other licensed provider, delivering a professional service, is physically located at the time the service is provided through telemedicine. Two locations, named separately, and the patient's is the one the statute organizes its coverage rules around.

Washington then builds its coverage rules on that definition. The originating sites it lists for a covered telemedicine service include a hospital, a rural health clinic, a federally qualified health center, a physician's or other health care provider's office, a licensed or certified behavioral health agency, a skilled nursing facility, a renal dialysis center other than an independent one, and home or any location determined by the individual receiving the service. The same section provides that a health carrier may not distinguish between originating sites that are rural and urban in providing the required coverage.

This is a description of six texts, not a rule of American law. Other states write other statutes, and a statute can and does pick a different connecting factor when its drafters want one. But when the same choice appears in a medical practice act, a nursing compact, a pharmacy code and an insurance code, it is worth understanding why.

Virginia's prescribing statute asks where the license is, not where the office is

Virginia Code section 54.1-3303 sets out the conditions under which a prescriber may establish a bona fide practitioner-patient relationship at a distance, and one condition in the list is stated in five words: the prescriber is actively licensed in the Commonwealth and authorized to prescribe.

There is no reciprocity clause in that condition and no exception for a prescriber whose license is in good standing elsewhere. The prescriber writing for a Virginia patient under that route holds a Virginia license.

The same section adds a second locational requirement for a narrower case. Where a practitioner who has established the relationship prescribes a Schedule II through V controlled substance to that patient via telemedicine, the prescriber must maintain a practice at a physical location in the Commonwealth, or be able to make appropriate referral of patients to a licensed practitioner located in the Commonwealth, in order to ensure an in-person examination of the patient when required by the standard of care.

Both halves of that alternative are about presence inside Virginia — either the prescriber's own practice, or a pathway to somebody else's. What the sentence rules out is a prescribing operation with neither.

The nursing compact says it in one sentence, and it is the clearest in this file

A multistate license is the one arrangement that might be expected to move the governing law along with the nurse. Virginia's enactment of the Nurse Licensure Compact says the opposite in terms.

Code of Virginia section 54.1-3040.3 states that a nurse practicing in a party state must comply with the state practice laws of the state in which the client is located at the time service is provided. It then broadens the point: the practice of nursing is not limited to patient care, but shall include all nursing practice as defined by the state practice laws of the party state in which the client is located.

And it states the jurisdictional consequence. The practice of nursing in a party state under a multistate licensure privilege will subject a nurse to the jurisdiction of the licensing board, the courts, and the laws of the party state in which the client is located at the time service is provided.

That is three separate submissions in one sentence — to a board, to courts, and to the laws — all keyed to the client's location.

The same compact makes clear that the privilege is not a substitute for licensure everywhere. Individuals not residing in a party state shall continue to be able to apply for a party state's single-state license as provided under that state's laws, but a single-state license granted to such an individual will not be recognized as granting the privilege to practice nursing in any other party state.

The pharmacy and internet statutes point at the destination of the package

The pattern repeats on the dispensing side, where the connecting factor is where the product arrives.

California Business and Professions Code section 2242.1 prohibits a person or entity from prescribing, dispensing, or furnishing, or causing to be prescribed, dispensed, or furnished, dangerous drugs or dangerous devices on the Internet for delivery to any person in this state, without an appropriate prior examination and medical indication. For delivery to any person in this state is the whole jurisdictional hook. The seller's own location does not appear in the operative clause.

The same section anticipates that the seller will often be elsewhere and provides for it. If the person or entity that is the subject of an action is not a resident of California, a violation shall, if applicable, be reported to that person's or entity's appropriate professional licensing authority.

Virginia's nonresident pharmacy statute uses the same construction. Any pharmacy located outside the Commonwealth that ships, mails, or delivers, in any manner, Schedule II through VI drugs or devices pursuant to a prescription into the Commonwealth shall be considered a nonresident pharmacy and shall be registered with the Board.

Virginia goes further and restricts where inside the state the package may end up. A nonresident pharmacy shall only deliver controlled substances that are dispensed pursuant to a prescription directly to the consumer or his designated agent, or directly to a pharmacy located in Virginia pursuant to regulations of the Board.

California extends it past dispensing to the supply chain. Business and Professions Code section 4161 provides that a person located outside California that ships, sells, mails, warehouses, distributes, or delivers dangerous drugs or devices into California, or sells, brokers, warehouses, or distributes them within California, is a nonresident wholesaler or nonresident third-party logistics provider, and shall be licensed by the board before doing any of those things. Located outside California is stated, and then made irrelevant by the activity that follows it.

The compact provides the enforcement counterpart to all of this. Under Virginia Code section 54.1-3040.3, all party states are authorized, in accordance with existing state due process law, to take adverse action against a nurse's multistate licensure privilege — including revocation, suspension, probation, any other action affecting the authorization to practice under the privilege, and cease and desist actions. A party state taking such action shall promptly notify the administrator of the coordinated licensure information system, which shall promptly notify the home state.

What this changes about reading a company's claims

The practical use of all this is in how to read a sentence on a website.

A statement that a company is licensed, or that its clinicians are licensed, is incomplete without a state attached. Under Virginia section 54.1-3303, a prescriber writing for a Virginia patient through the remote route is required to be actively licensed in the Commonwealth; a license in another state does not satisfy that condition. Under Virginia section 54.1-3040.3, a nurse practicing under a multistate privilege is complying with the practice laws of the state where the client is, and is subject to that state's board and courts.

A statement about where a pharmacy is located does not answer whether it may ship. Virginia section 54.1-3434.1 and California section 4161 both attach their requirements to the act of shipping in, not to the address of the shipper.

And a statement about a company's incorporation answers a different question again. California section 2242.1 reaches a person or entity that causes a prescription to be issued for delivery into California, and provides for referral of a non-resident violator to that entity's own licensing authority.

Two limits on all of this. It describes six statutes in three states, and says nothing about the forty-seven states not read here — a different state may write a different connecting factor, and several of these statutes carry exceptions quoted elsewhere in this corpus. And none of it tells a reader whether any particular arrangement complies. It tells a reader which state's rulebook the arrangement is being measured against, which is the question that has to be settled before any of the rest of it can be read.