Telemedicine Legal Series—Part 2: Licensing Issues

In this Series:
Introduction
Part 1: Practice Issues
Part 2: Licensing Issues
Part 3: e-Prescribing
Part 4: Standard of Care Issues
Part 5: HIPAA Issues
Part 6: Mobile Medical Apps
Part 7: Unlicensed Practice, Fee-Splitting, and other Legal Hazards
Conclusion

Because telehealth and telemedicine often involve practice across state lines, healthcare practitioners must understand the state laws which allow practice in situations where the healthcare provider is licensed in his or her own state (but not the patient’s).

Note: there’s another version of telemedicine that involves a medical doctor in the same state, providing services remotely to underserved populations. This isn’t where the licensing issues arise. In this Series, particularly in this article on licensing issues, we’re primarily focusing on physician interactions involving out-of-state patients.

Licensing? But I’m a Doctor!

Let’s make things easy with some definitions.

The state where you, the clinician, are located when you give an online session is called the ‘Home State’. The state where the patient is located is called the ‘Remote State’.

States control healthcare licensure because of the Tenth Amendment to the U.S. Constitution. This Amendment gives states the power to regulate health and welfare. Although the federal government has various powers with respect to interstate commerce, and gets heavily involved, for example, by regulating the insurance market via Obamacare, the question of who can be licensed is up to the states.

This is why, for example, if you are a medical doctor licensed in New York (the Home State), but your patient is located in Massachusetts (the Remote State), Massachusetts can decide that:

• When you give advice, via an online, telemedicine platform, to your patient who is in Massachusetts, you are practicing in Massachusetts and, furthermore, you need a Massachusetts license to practice there.

The upshot of this analysis is that if you are licensed in the Home State but not the Remote State, you could find yourself “practicing medicine without a license” in the Remote State!

States Differ

Once again, every state has its own telemedicine rules—even if there is no statute and only a regulation by a professional Board, or a policy statement, or a case interpreting the law, or, by default, existing licensing laws.

So when you contemplate a business model that incorporates telemedicine, be sure to get legal advice tailored to the state or states in which you intend to do business.

Telemedicine laws are popping up everywhere. They can even change or be challenged by industry. For example, Teladoc, a leading telemedicine provider, has filed a lawsuit against the Texas Medical Board, alleging the telemedicine rule unlawfully stifles competition.

A Model Telemedicine Policy

The Federation of State Medical Boards has weighed in with a Model Policy for Appropriate Use of Telemedicine Technologies in the Practice of Medicine. This is not law, and does not have the force of law, unless adopted by the individual state. However, the guidelines provide a set of rules to keep in mind as these influence ongoing legal and regulatory developments. Many states have adopted some, or all, of the Federation’s Model Policy as part of their own telemedicine law. (See, for example, the Virginia Board of Medicine’s guidance document on Telemedicine).

It’s important to note that the Federation’s Model Telemedicine Policy is meant to regulate licensed physicians. Other clinicians might find themselves without the benefit of regulation on point, or even of model rules. They can look to the Model Telemedicine Policy as a general set of principles, but ultimately should seek legal advice for interpretations relevant to their situation.

The Federation’s Model Telemedicine Policy requires that before practicing telemedicine, the physician establish a physician-patient relationship. This means the doctor undertakes to diagnose and treat the patient, and the patient agrees—whether or not this initial encounter has been in person.

If the patient is in a Remote State then, in order to establish the physician-patient relationship, the physician must:

1. Fully verify and authenticate the location and identity of the requesting patient.

2. Disclose and validate the identity of the Remote provider, if there is one. For example: the case of a medical doctor in the Home State, working with a nurse practitioner in the Remote State.

3. Obtain appropriate consents from requesting patients, after giving disclosures about the benefits and limitations of a telemedicine consult.

4. Ensure the physician’s identity is known to the patient.

Next, the Telemedicine Model Policy requires that the physician be “appropriately” licensed both in the Home State and in the Remote State.

Some states follow this rule strictly but, in many states, the Remote State physician may consult occasionally (sometimes stated as “episodically”) with the Home State physician.

The physician must also practice informed consent and use the same standard of care as in an in-person visit. Physicians must maintain accurate medical records, respect the privacy of patient records, exercise necessary confidentiality around exchange of information, and otherwise abide by all laws and ethical standards.

Interstate Medical Licensure Compact Legislation

Notably, although the Model Telemedicine Policy insists on “appropriate” state licensure in both the Remote State and Home State, the Interstate Medical Licensure Compact offers a streamlined licensing process for physicians interested in practicing medicine in multiple states.

The Federation of State Medical Boards supported state medical and osteopathic medical boards, and established a Commission to administer the Interstate Medical Licensure Compact with a commitment to develop requirements for its technical infrastructure.

Conclusion

If you’re going to offer telemedicine or telehealth services, you should consider how your state regulates telemedicine, as well as how telemedicine is regulated in the state where the patient is located.

Some states are extremely strict and only in-state licensed physicians can offer clinical services.

Other states allow an out-of-state physician to conduct episodic consultations with either the patient or the patient’s in-state provider. For example, Arkansas law allows an out-of-state physician to create a “consultative relationship” with an Arkansas physician.

In all cases, the best practice is to first establish the patient-physician relationship in which the patient and physician agree that the physician is engaged to provide diagnosis and treatment.

Contact the Michael H. Cohen Law Group for a telemedicine legal consult that fits your particular business model.

Reading this article does not create an attorney-client relationship with its author or with the Michael H. Cohen Law Group. This is an informational and educational piece; it does not constitute legal advice. If you’d like legal advice, consult an attorney for advice specific to your situation.

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