Telemedicine issues addressed by regulation

Telemedicine law increasingly affects our clients, whether they are physicians or non-medical, holistic health practitioners.

Below is information from the California state medical board regarding telemedicine. Telemedicine issues affect many of our clients who wish to store patient health information online and, increasingly, use electronic services to transmit diagnostic and therapeutic communication between physicians and patients.

Practicing Medicine Through Telemedicine TechnologyIn California:

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 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 license.

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. 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 practicing via telemedicine are held to the same standard of care, and retain the same responsibilities of providing informed consent, ensuring the privacy of medical information, and any other duties associated with practicing medicine. Telemedicine is seen as a tool in medical practice, not a separate form of 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:

California Telemedicine & eHeath Center (CTEC) offers a number of helpful publications, including:

Telemedicine Reimbursement Handbook
eMental Health and Telepsychiatry Practice Guide
Teledermatology Practice Guide
A Glossary of Telemedicine and eHealth
Telecommunications Discount Guide

These publications can be found at the CTEC Web site: http://www.cteconline.org/publications.html

University of California, Davis, Telemedicine Learning Center: http://www.ucdmc.ucdavis.edu/cht/programs/tlc/"

Center for Telehealth and e-Health Law: www.telehealthlawcenter.org

U.S. Department of Agriculture Rural Utilities Services: The Distance Learning and Telemedicine Grant and Loan Program: http://www.usda.gov/rus/dlt/overview.htm"

Telemedicine Information Exchange (Including grant funding opportunities): http://tie.telemed.org

AB 354 (Cogdill; Chap. 449, Stats. of 2005) added section 14132.725 to the Welfare and Institutions Code, which authorizes Medi-Cal reimbursement for teleophthalmology and teledermatology. To view the entire bill: http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_0351-0400/ab_354_bill_20050930_chaptered.html"

AB 1224 (Hernandez; Chap 507, Stats of 2007) amended 2290.5 and 3041 of the Business & Professions Code, extending the same telemedicine provisions to optometrists in telemedicine practice as physicians and surgeons. To view the entire bill: http://www.leginfo.ca.gov/pub/07-08/bill/ams/ab_1201-1250/ab_1224_bill_20071011_chaptered.html

Managed Care Programs contracted to provide services to Medi-Cal patients may not require person-to-person contact with the provider for reimbursement. (H&S Code Section 1374.13): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=01001-02000&file=1367-1374.17

Health Insurers must reimburse for services provided through telemedicine. (Ins. Code Section 10123.147): http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ins&group=10001-11000&file=10110-10127.18

Note that each state regulates telemedicine differently, since telemedicine like the practice of medicine is a creature of state law.

As medicine and health care increasingly move across state boundaries into virtual reality, it will become more and more important to seek legal consultation regarding the impact of telemedicine rules.

Also relevant are Federal Trade Commmisssion (FTC) rules regarding advertising and marketing health care services, as well as state law rules governing advertising for medicine and other health care professions. These are all areas in which our law office has expertise and in which we regularly advise our health care clients.

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