In this post I link to and excerpt from the Medscape* Telemedicine: Can It Help Your Practice? Making Video Visits Successful for You and Your Patients Chapter 3:
Here are excerpts:
Regulatory and Legal Issues
To use telemedicine successfully, you need to understand the regulations around it and the malpractice risks first.Understand the Varied State Regulations
State regulations of telemedicine are notoriously byzantine and can be subject to change, as lawmakers reconsider policies and add new twists. Just in the first 4 months of 2019, for example, seven states passed laws on telemedicine. However, new laws usually make it easier to use telemedicine, which is the trend.
Dropping requirements that telemedicine doctors needed a preexisting relationship with the patient was a watershed change in state regulation—especially for telemedicine companies that never deal with patients face-to-face. Texas was the last state to drop this requirement in 2017. However, some states still require a preexisting relationship for prescribing, which will be discussed later.
Meanwhile, many states still limit the allowable modes of telemedicine. According to a 2019 report from the American Telemedicine Association (ATA), virtually all states and the District of Columbia allow synchronous telemedicine. But 16 states, including Florida and Georgia, allow only synchronous transmission; 29 states and the District of Columbia also allow store-and-forward telemedicine, which involves saved text and images; and 22 states and the District of Columbia also allow remote patient monitoring, the ATA reports.
In addition, 23 states specify where the patient can be located for telemedicine, called the “originating site,” according to the Center for Connected Health Policy (CCHP). Thirteen of these states allow the originating site to be in the home, though special conditions often apply, the CCHP states.
When the originating site is a healthcare facility, Alabama, South Carolina, and Virginia require that trained staff or providers be at least immediately available to the patient, according to the ATA.
Keeping up with changing state regulations can be confusing. The ATA and CCHP offer yearly reports that are online and break down regulations by state. Yearly reports, however, may miss recent developments in state regulations. You may be able to get more up-to-date information from organizations that always have to keep current.
Telemedicine providers and telemedicine software companies have to keep up to date, and sometimes they are willing to share their information. You might also contact your commercial payers. They have to keep up to date with regulations in order to determine what services they will reimburse.
Obtaining Licensure in Other States – See the web page for details.Requiring Informed Consent
Another major requirement in many states is that physicians must get the patient’s informed consent—sometimes in writing—before initiating telemedicine. This is a special telemedicine consent process, beyond the normal consent process for treatment.
Altogether, 34 states plus the District of Columbia require some form of informed consent, according to a 2018 report by Mend, a telemedicine software company. Mend provides a state-by-state breakdown on informed consent policies.State Rules on Prescribing via Telemedicine
State rules of telemedicine prescribing are generally determined by licensing boards, and they are often so nuanced that state-by-state compilations by the CCHP and other sources don’t even both bother to provide listings on prescribing.
In general, the CCHP states that many states require telemedicine prescribers to have a preexisting relationship with the patient, but some states allow an online questionnaire as a way to establish a relationship. Also, some states require a physical examination, but some of those states allow this to be an online physical exam, the CCHP adds.
The risks of being charged for violating prescribing restrictions are real. Most reported telemedicine malpractice cases involve physicians who prescribed medications across state lines without conducting in-office patient exams. Be sure to check with your state licensing board for rules in your area.Acknowledging Malpractice Risks for Physicians
In contrast to the tangle of state regulations, malpractice concerns in telemedicine are quite straightforward.
The risks of being sued for malpractice for a telemedicine visits are extremely low. One recent sampling of claims in New England did not find one claim involving this modality. There have, however, been some malpractice cases involving medications prescribed across state lines, as previously mentioned.Conclusion
You need to fully understand regulations for telemedicine before you can successfully use it. State regulations can limit the location of the service or the types of patients you can see, and require informed consent from the patient for telemedicine. In addition, many states limit or even bar online prescribing without an in-person visit.