Telemedicine legal exceptions require careful scrutinty

You won't always find telemedicine legal exceptions in the telemedicine box of a given state's laws.

Some states lay out the whole telemedicine legal issue very clearly in a policy statement by the state medical board.  Still other states go even further and apply telemedicine law to psychiatry and mental health counseling, or call it telehealth (or tele-health) and lay out the laws and legal rules for various healthcare professionals.

But in other states, you have to find a capable attorney who knows telemedicine laws to find the applicable legal rules.  Sometimes, for example, the laws are sneaky and the telemedicine exception you need is tucked into a discussion of physician licensure.

For example, take this statutory language from Arizona:

"This article does not apply to any doctor of medicine residing in another state, federal jurisdiction or country who is authorized to practice medicine in that jurisdiction, if he engages in actual single or infrequent consultation with a doctor of medicine licensed in this state and if the consultation regards a specific patient or patients."

This is the consultation-only exception that is available in some states.  Note that it does not allow a physician to consult directly with the patient.

For non-physicians practicing complementary therapies, this language is also instructive:

"2. The administration of family remedies including the sale of vitamins, health foods or health food supplements or any other natural remedies, except drugs or medicines for which an authorized prescription is required by law.

3. The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance."

Once again, the exceptions are very specific. Of course, these do not constitute telemedicine but rather relate to carve-outs from the legal definition of the practice of medicine in ways that affect non-licensed CAM providers.

It turns out that in addition to the allowance for telemedicine consultations in the exception to the medical licensing law, Arizona also has a law specifically addressing telemedicine:

36-3602. Delivery of health care through telemedicine; requirements; exceptions

A. Except as provided in subsection E of this section, before a health care provider delivers health care through telemedicine, the treating health care provider shall obtain verbal or written informed consent from the patient or the patient's health care decision maker. If the informed consent is obtained verbally, the health care provider shall document the consent on the patient's medical record.

B. The patient is entitled to all existing confidentiality protections pursuant to section 12-2292.

C. All medical reports resulting from a telemedicine consultation are part of a patient's medical record as defined in section 12-2291.

D. Dissemination of any images or information identifiable to a specific patient for research or educational purposes shall not occur without the patient's consent, unless authorized by state or federal law.

E. The consent requirements of this section do not apply:

1. If the telemedicine interaction does not take place in the physical presence of the patient.

2. In an emergency situation in which the patient or the patient's health care decision maker is unable to give informed consent.

3. To the transmission of diagnostic images to a health care provider serving as a consultant or the reporting of diagnostic test results by that consultant.

It's what you don't know you don't know that hurt you.  Legal research means reviewing and uncovering and analyzing the laws that matter.

Telemedicine is a tricky arena.  Clients benefit from thorough legal research by an attorney who knows the telemedicine legal landscape.

Our legal advice includes both federal and state law, and we advise clients on how to minimize their legal exposure.  "Don't roll the dice, get legal advice!"

 

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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