Telemedicine, Telepsychology, Telepsychiatry and Telehealth Legal Issues

Telemedicine and other online health services pose novel legal issues, but these tele-health practices are the wave of the future.

The legal issues involving telemedical and other telehealth practice (such as telepsychiatry, telepsychology, and other online health service) are novel, and largely unregulated in many states.

The legal backdrop for telemedicine and other online practices is the state licensing law.  Generally in a mandatory licensing scheme, unlicensed practices (for example, unlicensed practice of medicine and unlicensed psychology practice) are prohibited.  This means than an individual licensed to practice medicine or psychology in State A cannot practice by offering services to a patient in State B via the Internet.  Such Web activities constitutes unlicensed practice and will subject the practitioner to a disciplinary activity. The health care professional will be subject to the laws of both states.

Sometimes practitioners can separate out educational, non-clinical, Web-based activities that are more informational and generic in nature, from clinical activities that are customized to an individual.  The latter are more likely to trigger legal concerns.

With careful legal advice, practitioners also may be able to style online services to take them out of the rubric of a professional practice.  For example, depending on the laws of a given state, the practitioner may be able to offer life coaching advice online as distinct from licensed, clinical services within the purview of a mental health professional.  This requires precise legal guidance tailored to the business model and practitioner.

In response to legal ambiguities concerning telemedicine laws, California's Board of Psychology has these rules in place:

Information on Telepsychology

From time to time the board becomes aware of articles or information that would be educational and informative to licensed psychologists and the consumers of psychological services. In such cases, the board will attempt to bring this information to licensees and consumers, provided the necessary authorizations for publication can be obtained. In the posting of any information on its web site, the board will maintain sole discretion as to what information is posted.

The following information regarding telepsychology has been excerpted with the permission of the primary author from "Regulation of Telepsychology: A Survey of State Attorneys General" by Gerry Koocher & Elisabeth Morray. Professional Psychology: Research and Practice, October, 2000, vol. 31, issue #5, pages 503-508.

In light of the survey data obtained in this research, the authors offer the following regarding telepsychology:

  • 1. Before engaging in the remote delivery of mental health services via electronic means, practitioners should carefully assess their competence to offer the particular services and consider the limitations of efficacy and effectiveness that may be a function of remote delivery.

  • 2. Practitioners should consult with their professional liability insurance carrier to ascertain whether the planned services will be covered. Ideally, a written confirmation from a representative of the carrier should be obtained.

  • 3. Practitioners are advised to seek consultation from colleagues and to provide all clients with clear written guidelines regarding planned emergency practices (e.g., suicide risk situations).

  • 4. Because no uniform standards of practice exist at this time, thoughtful written plans that reflect careful consultation with colleagues may suffice to document thoughtful professionalism in the event of an adverse incident.

  • 5. A careful statement on limitations of confidentiality should be developed and provided to clients at the start of the professional relationship. The statement should inform clients of the standard limitations (e.g., child abuse reporting mandates), any state-specific requirements, and cautions about privacy problems with broadcast conversations (e.g., overheard wireless phone conversations or captured Internet transmissions).

  • 6. Clinicians should thoroughly inform clients of what they can expect in terms of services offered, unavailable services (e.g., emergency or psychopharmacology coverage), access to the practitioner, emergency coverage, and similar issues.

  • 7. If third parties are billed for services offered via electronic means, practitioners must clearly indicate that fact on billing forms. If a third-party payer who is unsupportive of electronic service delivery is wrongly led to believe that the services took place in vivo as opposed to on-line, fraud charges may ultimately be filed.

The Board's website is usually a good place to look for laws and regulations concerning telehealth practices.

In addition, the responsible, wise move is to consult an experienced telemedicine attorney.

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Michael H. Cohen is an experienced business law and health care law attorney.  He has taught health care law and policy at Harvard University and counseled many different kinds of practitioners and businesses, including:

  • entrepreneurial start-up ventures in many different industries
  • physicians (MD's and DO's)
  • physician groups, hospitals, and clinical facilities
  • integrative medicine centers
  • professional health care educational institutions and associations
  • dentists
  • registered nurses and advanced practice nurses
  • clinical psychologists
  • chiropractors
  • acupuncturists
  • massage therapists
  • homeopathic physicians and homeopaths
  • naturopathic doctors and naturopaths
  • energy healers, hypnotists, medical intuitives
  • dietary supplement manufacturers and distributors
  • cosmetics manufacturers
  • entrepreneurs and start-ups
  • publishers
  • wellness clinics
  • herbalists
  • bio-energy companies
  • medical device inventors
  • telemedicine enterprises
  • many different businesses

As an attorney  at the cutting edge of health care and business law, he represents enterprises whose leaders are conscious and committed to a better world.  He provides legal and regulatory expertise to a multitude of businesses and corporations, as well as to attorneys and law firms involved in various health care legal issues including:

  • fee-splitting, Stark and anti-kickback
  • corporate practice of medicine (including New York, California, Massachusetts, D.C.)
  • medical board disciplinary proceedings and other professional discipline
  • negligence, informed consent, and medical malpractice liability (negligence)
  • HIPAA and patient privacy and confidentiality issues
  • Medicare (including opting out vs. participation vs. non-participation)
  • professional liability insurance and insurance (billing and coding) issues
  • telemedicine, tele-psychiatry and telehealth
  • litigation (plaintiff's counsel and defense) and negotiation
  • other legal and regulatory compliance issues.

To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact attorney Michael H. Cohen today.