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.
Phone: 213-233-2260
Email: tgreen@greenassoc.com
