Telemedicine or telehealth by medical providers who do not understand its limits is creating more disciplinary investigations and some criminal cases where physicians treat patients who are located in states that the physicians are not licensed. This is different than consultations or educational demonstrations.
Under current and even proposed law, the practice of medicine occurs where the patient is located at the time of the physician-patient encounter regardless of where the doctor may be. Thus, if the patient is in Texas and the doctor is in California, the doctor must be licensed in California. For example, in one case we handled, even a pathologist in California reading slides and writing reports for Texas patients must be licensed in Texas according to the Texas Medical Board.
Licensing laws regarding telemedicine may be changing. Officials representing state medical boards across the country have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by video conference or online. This is a big change in medical licensing and is designed to allow greater use of telemedicine and alleviate the issues of doctor shortage. A New York Times article goes into this proposed compact in detail.
The draft legislation — in the form of an interstate compact, a legally binding agreement among states — would provide that doctors who meet certain standards could sidestep a longstanding requirement that they apply for licenses state by state. But it would preserve the authority of each state to regulate the practice of medicine within its borders.
Working through the commission, a doctor licensed in one state could seek an “expedited license” from one or more additional states. To be eligible, a doctor would have to be certified in a medical specialty and have no history of being disciplined, penalized or punished by a court, a medical licensing agency or the Drug Enforcement Administration. Under this compact, a doctor could not obtain an expedited license if the doctor was “under active investigation by a licensing agency or law enforcement authority in any state, federal or foreign jurisdiction.”
As part of the compact, states would agree to share information on doctors who had been disciplined or were under investigation. The commission would serve as a clearinghouse. If a license is revoked or suspended in a doctor’s home state, then all licenses issued to the doctor by other states participating in the compact could be automatically revoked or suspended.
This has not been adopted yet and any doctors, therapist or medical providers who are engaging in telemedicine through Skype or videoconferencing or by phone calls must ensure that they are complying with their own state laws.
California has rules regarding telemedicine and informed consent forms that the patients must complete. Failure to obtain the informed consent forms for telemedicine is considered unprofessional conduct. Medical providers are held to the same standard of care with telemedicine with respect to face-to-face visits. This is a changing area of law but medical providers need to familiarize themselves with the rules and regulations and not simply assume that telemedicine is now "legal." California laws allow California licensed doctors to treat California patients but only if certain procedures are followed and informed consents obtained.
Posted by Tracy Green, Esq.