Telemedicine law - legal rules continue to confuse and inspire
Telemedicine laws are the Rubik's Cube of future health care and statutory research the Penrose staircase of salvation.
With health care shifting from the clinic to the Internet, practices are increasingly looking to telemedicine, telepsychiatry and telehealth. There are several sites online that say they compile state laws and give a handy summary. This can be useful, but also a trap for the unwary.
Legal research is complex. Health care lawyers and telemedicine attorneys must find the most up to date guidance and sometimes the statutes online are out of date, as are the industry summaries. Every state frames its telemedicine laws in unique ways.
Here is an unusual example from Colorado's medical licensing laws.
Colorado defines "telemedicine" to mean “the delivery of medical services and any diagnosis, consultation, or treatment using interactive audio, interactive video, or interactive data communication.”[1]
Colorado defines the “practice of medicine” (which requires a license) to include telemedicine:
(1) For the purpose of this article, "practice of medicine" means: (a) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever….
(g) The delivery of telemedicine. Nothing in this paragraph (g) authorizes physicians to deliver services outside their scope of practice or limits the delivery of health services by other licensed professionals, within the professional's scope of practice, using advanced technology, including, but not limited to, interactive audio, interactive video, or interactive data communication.
Paragraph (g) suggests that those health care professionals who are licensed and legally practicing within their authorized scope, may incorporate telemedicine practices in-state; however, this does not physicians who are not licensed in Colorado to practice telemedicine. As the law further makes clear:
(2) If a person who does not possess and has not filed a license to practice medicine or practice as a physician assistant in this state, as provided in this article, and who is not exempted from the licensing requirements under this article, performs any of the acts that constitute the practice of medicine as defined in this section, the person shall be deemed to be practicing medicine or practicing as a physician assistant in violation of this article.
Curiously, in its exemptions to the requirement of a medical license, Colorado includes the following:
(3) A person may engage in, and shall not be required to obtain a license or a physician training license under this article with respect to, any of the following acts….
(b) The occasional rendering of services in this state by a physician if the physician:
(I) Is licensed and lawfully practicing medicine in another state or territory of the United States without restrictions or conditions on the physician's license;
(II) Does not have any established or regularly used medical staff membership or clinical privileges in this state;
(III) Is not party to any contract, agreement, or understanding to provide services in this state on a regular or routine basis;
(IV) Does not maintain an office or other place for the rendering of such services;
(V) Has medical liability insurance coverage in the amounts required pursuant to section 13-64-302,[4] C.R.S., for the services rendered in this state; and
(VI) Limits the services provided in this state to an occasional case or consultation.
This provides limited leeway to “occasionally consult” with patients within Colorado.
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