CAMLAW: Complementary and Alternative Medicine Law Blog

Telemedicine Laws and Innovative, Emerging, ComplementaryTherapies

CAM legal issues such as unlicensed practice of medicine, scope of practice, corporate practice of medicine, and physician discipline loom large in telemedicine practices.

I'm starting to think more broadly than "CAM" in terms of innovative and emerging therapies, because a lot of disciplinary actions are involving cutting-edge clinical innovation which boards and/or the physicians involved sometimes think of as "alternative medicine" whereas they actually involve functional medicine, or other theories and systems and complex mixes of therapies for chronic conditions that the 'conventional' standard of care may not successfully address.

The whole issue of what is the standard of care, how much leeway is allowed, and whether the CAM statute protects the doctor has become a lot more critical lately.

Such issues can be particuarly complex in consultative situations such as in telemedicine.

In any event, some of New York's telemedicine guidance is reproduced below.

NYS Education Law
Article 131, Medicine
§6526. Exempt persons.
The following persons under the following limitations may practice medicine within the state without a license:
1. Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;
2. Any physician who is licensed in a bordering state and who resides near a border of this state, provided such practice is limited in this state to the vicinity of such border and provided such physician does not maintain an office or place to meet patients or receive calls within this state;
3. Any physician who is licensed in another state or country and who is meeting a physician licensed in this state, for purposes of consultation, provided such practice is limited to such consultation;
4. Any physician who is licensed in another state or country, who is visiting a medical school or teaching hospital in this state to receive medical instruction for a period not to exceed six months or to conduct medical instruction, provided such practice is limited to such instruction and is under the supervision of a licensed physician;
5. Any physician who is authorized by a foreign government to practice in relation to its diplomatic, consular or maritime staffs, provided such practice is limited to such staffs;
6. Any commissioned medical officer who is serving in the United States armed forces or public health service or any physician who is employed in the United States Veterans Administration, provided such practice is limited to such service or employment;
7. Any intern who is employed by a hospital and who is a graduate of a medical school in the United States or Canada, provided such practice is limited to such hospital and is under the supervision of a licensed physician; or
8. Any medical student who is performing a clinical clerkship or similar function in a hospital and who is matriculated in a medical school which meets standards satisfactory to the department, provided such practice is limited to such clerkship or similar function in such hospital.
9. Any dentist or dental school graduate eligible for licensure in the state who administers anesthesia as part of a hospital residency program established for the purpose of training dentists in anesthesiology.

Statements on Telemedicine
Board for Professional Medical Conduct
William P. Dillon, M.D., Chair of the Board for Professional Medical Conduct (Board), in October 2000 charged a Special Committee on Telemedicine to draft an ethical statement relevant to the practice of telemedicine. The membership of the committee is listed in Attachment 1. Attachment 2 is a partial compilation of reference materials the committee considered in developing this statement.
The charge to the Special Committee on Telemedicine was:
Advances in medicine and technology are rapidly transforming today's medical practice. While these advances offer opportunities to improve the delivery of health care, they also present challenges to practitioners. The development of telemedicine presents particular challenges to the physician in assuring that the integrity and confidentiality of the physician-patient relationship are maintained, that the scope of practice is within the legal statutes set forth by the state where the physician is practicing medicine and that the ethics as recognized by the medical profession are upheld. Acknowledging these challenges, it is the charge of the Board for Professional Medical Conduct Special Committee on Telemedicine to draft an ethics statement which addresses the use of telemedicine by New York physicians. This document should serve as a guide to physicians in assessing whether the tenets of professional conduct and the physician-patient relationship are being upheld when using electronic communication in their practice of medicine. Issues which these ethical statements should address, among others seen appropriate by the committee, should include the physician-patient relationship and communication, record keeping, providing for physical examinations and confidentiality.
In considering their charge, committee members concluded that the statement which follows is intended to provide guidance to the Board and physicians within the current laws governing medical practice. Telemedicine is a very promising force that will increasingly be incorporated into medical practices. The changes that this burgeoning technology will bring in the near future are unprecedented, and laws and regulations will need to accommodate these changes while allowing for public safety. The purpose of this statement is to provide an ethical framework within current laws, statutes and medical standards that will guide physicians, physician assistants, the Office of Professional Medical Conduct and the Board in determining if medical practices uphold the physician-patient contract and public trust.
Telemedicine offers great promise for the practice of medicine. Its potential for addressing access to information, providing expert advice readily, offering standards of quality, and assembling comprehensive patient databases are among the type of innovations yet to be realized. Telemedicine unquestionably has already become part of medical care in New York. The practice of telemedicine can be characterized as follows:
· The geographic separation between two or more participants and/or entities engaged in health care,
· The use of telecommunication and related technology to gather, store and disseminate health-related information, and
· The use of electronic interactive technologies to assess, diagnose and/or treat medical conditions.
All the current standards of care regarding the practice of medicine apply. The fact that an electronic medium is utilized for contact between parties or as a substitute for face-to-face consultation does not change the standards of care. The American College of Obstetricians and Gynecologists (ACOG) Statement on Telecommunication in Medicine presents it clearly: "The standards of care for medical practice apply with equal force and vitality to telemedicine if a physician-patient relationship is deemed to exist." Since the State of New York, in its role of protecting public health and safety, has the authority to ensure the safe practice of medicine, the State therefore, by extension, has the authority and responsibility to require a like level of safe medical care in the practice of telemedicine.
It is the location of the patient that defines where the care has been delivered and the jurisdiction of applicable regulations. Physicians and physician assistants who practice or hold out to practice or engage in any physician-patient1 relationship in New York must be licensed and currently registered in New York. Legal precedents have established that the State has the right to require licensure to engage in medical practice in the State. The establishment of standards for licensure is not an impingement upon a physician's or physician assistant's professional property rights, does not unfairly restrict mobility, nor is it unreasonably costly. Telemedicine makes it easy to practice medicine across state lines. Therefore telemedicine is a practice and licensing issue that every state must consider. In New York, the State performs its public protection role through the enforcement of the licensure laws. The practice of medicine through telemedicine in New York State by someone not authorized to practice in New York State may constitute the illegal practice of a profession, subject to investigation by the New York State Education Department and prosecution by the New York State Attorney General.
A critical issue in telemedicine is determining the definition of a physician-patient relationship. The references reviewed by the committee have some degree of variation in their definitions related to the general purpose of each document. Some general statements are self-evident in their identification of a physician-patient relationship, and certain types of telecommunication are easily identifiable as not constituting a physician-patient relationship. Health information sites accessed for general information only, without personal interaction, through electronic media are no different from accessing a reference text in a library, and do not constitute a professional relationship. The fact that most types of telemedicine practice are not reimbursed is irrelevant. The committee concluded that the following statement of ACOG is a clear and practical guiding principal:
"If a patient receives professional advice or treatment, even gratuitously, there is prima facie evidence that a physician-patient relationship exists."
New York State Education Law, Article 131, Section 6526(3) does permit a physician not licensed in New York State to provide occasional consultation to a physician licensed and registered in New York State to assist in the care of a patient (see section of law, Attachment 3). The work of this committee is not intended to restrict or redefine permissible consultations now available to and utilized by New York State physicians.
New York requires that a physician or physician assistant display his or her license and current registration at the practice site, and that patients or potential patients have access to that for their view. Physicians and physician assistants are obliged to be identifiable to their patients and failure to provide verification of identity may be misconduct. A patient must have the ability to identify the physician or physician assistant at the point of access. Therefore, it follows that in a telemedicine professional relationship there must also be some form of identification/certification that the physician or physician assistant on the professional end is the licensed, currently registered physician or physician assistant he or she purports to be.
Having engaged in a professional relationship via telemedicine, the physician or physician assistant must meet the same expectation of quality as in the traditional medical care process. Other expectations necessarily follow. The first are ethical issues and they include: The physician or physician assistant, having established a relationship, has a duty to be available for care when it is needed or to see that there is a reliable provision for care and advice. The fact that the advice or treatment occurred via electronic media does not change the requirement for follow-up care.
In telemedicine, as in face-to-face encounters, a medical record must be created and maintained according to prevailing medical record standards. The medical record is the means by which an episode of care is evaluated against the community standard. The standards of the medical record for content and clarity have been well established. The failure to meet the medical record standard is a frequently sustained and punishable charge in medical misconduct cases. The medical record serves to document the analysis and plan of an episode of care for future reference. It must reflect an appropriate evaluation of the patient's presenting symptoms. Relevant components of the electronic professional interaction must be documented as with any other encounter. Personal communications with patients, not part of that medical record, should be archived separately from the medical record. The medical record is the means of transferring information to another practitioner or appropriate individuals and entities. The medical record is also a legal document and is evidentiary material in legal matters. The standards of confidentiality regarding medical records resulting from an electronic encounter are similarly required.
Telemedicine is another technological advance that physicians, physician assistants and patients will embrace in our never ending pursuit of restoring and maintaining optimal health. The field is changing rapidly, but we found that the existing tenets of professional conduct can be comfortably applied to the practice of telemedicine.
For the purposes of this statement, physician-patient relationship refers to the professional relationship between patients and their physician or physician assistant.

Trackbacks (0) Links to blogs that reference this article Trackback URL
Comments (0) Read through and enter the discussion with the form at the end

Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173