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The Constitutionality of Current Legal Barriers to Telemedicine in the United States: Analysis and Future Directions of its Relationship to National and International Health Care Reform

58 Pages Posted: 8 Feb 2010 Last revised: 29 Jan 2012

Amar Gupta

Massachusetts Institute of Technology (MIT)

Deth Sao

Pace University

Date Written: February 8, 2010

Abstract

The current health care crisis in the United States compels a consideration of the crucial role that telemedicine could play towards deploying a pragmatic solution. The nation faces rising costs and difficulties in access to and quality of medical services. Telemedicine can potentially help to overcome these challenges, as it can provide new cost-effective and efficient methods of delivering health care across geographic distances. The full benefits and future potential of telemedicine, however, are constrained by overlapping and often inconsistent and inadequate regulatory frameworks, as well as the repertoire of standards imposed by state governments and professional organizations. Proponents of these barriers claim that they are necessary to protect public health and safety, and that the U.S. Constitution gives states exclusive authority over health and safety concerns. This paper argues that such barriers not only fail to advance these public policy goals, but are unconstitutional when they restrict the practice of telemedicine across state and national borders. Furthermore, the interstate and international nature of telemedicine calls for the centralized authority of the federal government; this position is consistent with the U.S. Constitution and other governing principles. Finally, this paper observes that the U.S. experience has some similarities to that of other nations, and represents a microcosm of the international community’s need and struggle to develop a uniform telemedicine regime. Just as with state governments in the U.S., nations are no longer able to view health care as a traditional domestic concern and must consider nontraditional options to resolve the dilemmas of rising costs and discontent in the delivery of health care to their people.

Keywords: telemedicine, health care reform, federalism, constitution, 10th Amendment, police powers, interstate commerce, commerce clause, spending clause

Suggested Citation

Gupta, Amar and Sao, Deth, The Constitutionality of Current Legal Barriers to Telemedicine in the United States: Analysis and Future Directions of its Relationship to National and International Health Care Reform (February 8, 2010). Health Matrix: Journal of Law-Medicine, 2011. Available at SSRN: https://ssrn.com/abstract=1549765

Amar Gupta (Contact Author)

Massachusetts Institute of Technology (MIT) ( email )

77 Massachusetts Avenue
Building 32-256
Cambridge, MA 02139
United States
617-253-0418 (Phone)

Deth Sao

Pace University ( email )

White Plains, NY
United States

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