CAMLAW: Complementary and Alternative Medicine Law Blog

California Medical Legal Issues

Recently we have seen a surge of clients seeking attorneys who can provide legal advice on telemedicine laws.

While each state has different rules, the California Medical Board offers this information:

 

Practicing Medicine Through Telemedicine Technology

In California:

Telemedicine is seen as a tool in medical practice, not a separate form of medicine. There are no legal prohibitions to using technology in the practice of medicine, as long as the practice is done by a California licensed physician. Telemedicine is not a telephone conversation, e-mail/instant messaging conversation, or fax; it typically involves the application of videoconferencing or store and forward technology to provide or support health care delivery.

The standard of care is the same whether the patient is seen in-person, through telemedicine or other methods of electronically enabled health care. Physicians need not reside in California, as long as they have a valid, current California license.

In 1996, Senate Bill 1665 (M. Thompson; Chap 864, Stats of 1996) enacted the "Telemedicine Development Act of 1996" which imposed several requirements governing the delivery of health care services through telemedicine and also made several changes to different sections of law, which are also related to telemedicine.

Below we have listed a few highlights of Senate Bill 1665:

  • The act shall not be construed to alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.

  • Exempts out-of-state practitioners, as defined, from the Medical Practice Act when consulting either within this state or across state lines, with a licensed practitioner in California. Prohibits the out-of-state practitioner from having ultimate authority over the care or primary diagnosis of a patient in California.

  • Requires the practitioner to obtain verbal and written informed consent (Business & Professions Code Section 2290.5) from the patient prior to delivering health care via telemedicine, and also requires that this signed written consent statement becomes part of the patient's medical record.

  • Provides that no health care service plan contract that is issued, amended, or renewed, on and after January 1, 1997, shall require face-to-face contract between a health care provider and patient for services appropriately provided through telemedicine, subject to all terms and conditions of the contract agreed upon between the enroll or subscriber and the plan.

There are prohibitions relating to prescribing over the Internet, which can result in license discipline, and carries hefty fines for prescribing without an appropriate prior examination (Business & Professions Code Section 2242 and 2242.1). This examination, however, need not be in-person, if the technology is sufficient to provide the same information to the physician if the exam had been performed face-to-face. A simple questionnaire, however, without an appropriate examination would be a violation of law, and would be a disciplinable offense.

In summary, the law governs the practice of medicine, and no matter how communication is performed, the standards are no more or less. Physicians using Telemedicine technologies to provide care to patients located in California must be licensed in California and must provide an appropriate prior exam to diagnose and/or treat the patient. Physicians practicing via telemedicine are held to the same standard of care, and retain the same responsibilities of providing informed consent (Business & Professions Code Section 2290.5), ensuring the privacy of medical information, and any other duties associated with practicing medicine.

California Licensed Physicians Practicing Medicine in Other States:

Physicians intending to practice medicine via telemedicine technology to treat or diagnose patients outside of California should check with other state licensing boards. Most states require physicians to be licensed, and some have enacted limitations to telemedicine practice or require or offer a special registration. A directory of all U.S. medical boards may be accessed at the Federation of State Medical Boards Web site: http://www.fsmb.org/directory_smb.html.

Exemption for Consultants and Guests:

Business & Professions Code Section 2060 provides for an exemption for consultants and guest physicians, it states:

Nothing in this chapter applies to any practitioner located outside this state, when in actual consultation, whether within this state or across state lines, with a licensed practitioner of this state, or when an invited guest of the California Medical Association or the California Podiatric Medical Association, or one of their component county societies, or of an approved medical or podiatric medical school or college for the sole purpose of engaging in professional education through lectures, clinics, or demonstrations, if he or she is, at the time of the consultation, lecture, or demonstration a licensed physician and surgeon or a licensed doctor of podiatric medicine in the state or country in which he or she resides. This practitioner shall not open an office, appoint a place to meet patients, receive calls from patients within the limits of this state, give orders, or have ultimate authority over the care or primary diagnosis of a patient who is located within this state.

Some have sought to use this code section to exempt themselves from licensure by calling themselves "consultants." This is a misreading of the code. As you can see, this section is to be used for purposes of the advancement of science, education, and scholarship, and to allow California licensed physicians to consult with experts in other states. It does not, however, authorize persons to practice medicine in California for any and all purposes by virtue of not having an office or taking calls from patients. Physicians contracting for providing diagnostic services to facilities in our state would be required to have a full and unrestricted California license and would not fall under this exemption.

There is No California Telemedicine Registration Program:

California has no telemedicine registration program. In 1996, the Board sought legislation to obtain the regulatory authority to develop a program for physicians in other states to become registered in California, without requiring full licensure. The legislation was unsuccessful in obtaining regulatory authority, and, instead, added Section 2052.5 of the Business & Professions Code. This code has been the source of some confusion, as it outlines the original proposal for the registration program, but requires the Board to seek legislation to place a future program in statute. Those unfamiliar with the law's history assume that the Board has a program or the authority to implement one - the Board has neither.

Following the Board's original efforts, the members worked with those who opposed the establishment of a registration program. In summary, due to substantial opposition and little support, there was no consensus to move forward with legislation.

Helpful Information Outside of the Medical Board's Jurisdiction:

While the Medical Board has no jurisdiction or authority over matters of reimbursement, funding, billing or fees, physicians interested in obtaining more information on telemedicine practice may find the following helpful:

 

 

One can then track the statutes but the real nub is applying emerging law, which is changing all the time, to specific business plans that companies devise.

It's important to consult an experienced telemedicine lawyer who is familiar with the telemedicine legal issues of specific states and has analyzed a variety of fact patterns in order to properly guide a major, Internet-based health system.

Frequently, telemedicine issues will dovetail with legal rules relating to:

  • medical malpractice (direct and vicarious liability)
  • professional discipline and regulation by the state medical board
  • standard of care
  • scope of practice
  • billing and coding
  • Medicare fraud and abuse
  • HIPAA, privacy and confidentiality concerns
  • other legal issues

Relying on Internet advice is no substitute for getting experienced legal counsel.  An ounce of legal prevention is word a pound of cure.

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Our law office has attorneys with legal experience  in FDA matters, including guiding  clients involved in health care  delivery, group medical and private  medical practice, who are concerned  about issues at the interface of  federal and state law, concerned  about medical board discipline or  medical malpractice liability  issues.  We also review and draft informed  consent forms and guide  clients concerning a variety of health care law  issues.

If you have legal questions concerning self-referral, kickbacks and fee-splitting or patient brokering in New York, California, Massachusetts, Washington DC, and other states, contact  a lawyer who knows the rules.

Consult an experienced  health care law attorney who knows complementary medicine and integrative  medicine for legal advice pertaining to any project involving allied health or CAM     professionals.

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Healthcare & FDA attorney Michael H. Cohen is a thought leader in healthcare law & FDA law, pioneering legal strategies in healthcare. wellness, and lifestyle markets. As a corporate and transactional lawyer, FDA regulatory attorney who also handles healthcare litigation, healthcare mediation and healthcare arbitration, and international healthcare & wellness law speaker, Los Angeles / Bay Area healthcare & FDA lawyer Michael H. Cohen represents conscious business leaders in a transformational era. Clients seek healthcare & FDA attorney Michael H. Cohen's legal savvy on all aspects of business law, healthcare law, and FDA law, including:

Whether advising start-ups or established companies, Los Angeles / San Francisco / Bay Area healthcare & FDA attorney Michael H. Cohen brings his entrepreneurial spirit and caring insight to cutting-edge legal and regulatory challenges.  

The Michael H. Cohen Law Group counsels healthcare practices, entities, and companies, such as clinical laboratories, physicians, psychologists, chiropractors, acupuncturists, naturopaths, nurses, healers, medical spas, sleep centers, addiction treatment centers, surgery centers, anti-aging centers, integrative medicine clinics, anti-aging practices, mental and behavioral health counselors, medical service organizations, telemedicine and mobile (m-health) companies, online health ventures, stem cell and cord blood entities; and other health and wellness enterprises.

Healthcare and FDA lawyer Michael H. Cohen is admitted to practice in California, Massachusetts, New York, and Washington, D.C. Our clientele is national and international, and we also counsel healthcare and FDA clients in Los Angeles, San Diego, Ventura, San Francisco Bay Area, San Jose, Santa Barbara, Sacramento, San Bernadino, Alameda, Contra Costa County, and other California cities and counties.  

Contact our Los Angeles, Ventura County, & San Francisco Bay Area FDA & healthcare attorneys today if you need a telemedicine lawyer, concierge medicine lawyer, HIPAA lawyer, FDA lawyer or FDA regulatory consultant (dietary supplements, medical devices, cosmetics, OTC drugs), advertising compliance lawyer, healthcare mediator or arbitrator, concierge medicine attorney, management services organization attorney, or other specialized healthcare legal advice or FDA regulatory consulting.

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