Because telemedicine laws vary by state, and the health care professional offering medical services to patients out-of-state is subject to the laws of both the home and the remote state, it is critical to get the right legal guidance.
Some states explicitly regulate telemedicine by statute, others by regulation, while others do not refer to telemedicine but phrase their legal rules in terms of the practice by health care professionals who are out of state.
Some use the term "telemedicine" to refer to technologies for remote diagnosis and treatment of in-state patients while others focus exclusively on out of state patients. Still others use terms such as telehealth or telepsychiatry. The legal landscape is evolving and can be daunting to practitioners. Many states cover medical services while others also address nursing services or mental health care services.
New York, for example, does not have a statute in place specifically dedicated to "telemedicine" per se, but offers a lot of guidance on the medical board’s website, reproduced below. For telemedicine legal advice be sure to contact an attorney versed in telemedicine laws across states.
Statements on Telemedicine Board for Professional Medical Conduct
William P. Dillon, M.D., Chair of the Board for Professional Medical Conduct (Board), in October 2000 charged a Special Committee on Telemedicine to draft an ethical statement relevant to the practice of telemedicine. The membership of the committee is listed in Attachment 1. Attachment 2 is a partial compilation of reference materials the committee considered in developing this statement.
The charge to the Special Committee on Telemedicine was:
Advances in medicine and technology are rapidly transforming today’s medical practice. While these advances offer opportunities to improve the delivery of health care, they also present challenges to practitioners. The development of telemedicine presents particular challenges to the physician in assuring that the integrity and confidentiality of the physician-patient relationship are maintained, that the scope of practice is within the legal statutes set forth by the state where the physician is practicing medicine and that the ethics as recognized by the medical profession are upheld. Acknowledging these challenges, it is the charge of the Board for Professional Medical Conduct Special Committee on Telemedicine to draft an ethics statement which addresses the use of telemedicine by New York physicians. This document should serve as a guide to physicians in assessing whether the tenets of professional conduct and the physician-patient relationship are being upheld when using electronic communication in their practice of medicine. Issues which these ethical statements should address, among others seen appropriate by the committee, should include the physician-patient relationship and communication, record keeping, providing for physical examinations and confidentiality.
In considering their charge, committee members concluded that the statement which follows is intended to provide guidance to the Board and physicians within the current laws governing medical practice. Telemedicine is a very promising force that will increasingly be incorporated into medical practices. The changes that this burgeoning technology will bring in the near future are unprecedented, and laws and regulations will need to accommodate these changes while allowing for public safety. The purpose of this statement is to provide an ethical framework within current laws, statutes and medical standards that will guide physicians, physician assistants, the Office of Professional Medical Conduct and the Board in determining if medical practices uphold the physician-patient contract and public trust.
Telemedicine offers great promise for the practice of medicine. Its potential for addressing access to information, providing expert advice readily, offering standards of quality, and assembling comprehensive patient databases are among the type of innovations yet to be realized. Telemedicine unquestionably has already become part of medical care in New York. The practice of telemedicine can be characterized as follows:
- The geographic separation between two or more participants and/or entities engaged in health care,
- The use of telecommunication and related technology to gather, store and disseminate health-related information, and
- The use of electronic interactive technologies to assess, diagnose and/or treat medical conditions.
All the current standards of care regarding the practice of medicine apply. The fact that an electronic medium is utilized for contact between parties or as a substitute for face-to-face consultation does not change the standards of care. The American College of Obstetricians and Gynecologists (ACOG) Statement on Telecommunication in Medicine presents it clearly: "The standards of care for medical practice apply with equal force and vitality to telemedicine if a physician-patient relationship is deemed to exist." Since the State of New York, in its role of protecting public health and safety, has the authority to ensure the safe practice of medicine, the State therefore, by extension, has the authority and responsibility to require a like level of safe medical care in the practice of telemedicine.
It is the location of the patient that defines where the care has been delivered and the jurisdiction of applicable regulations. Physicians and physician assistants who practice or hold out to practice or engage in any physician-patient1 relationship in New York must be licensed and currently registered in New York. Legal precedents have established that the State has the right to require licensure to engage in medical practice in the State. The establishment of standards for licensure is not an impingement upon a physician’s or physician assistant’s professional property rights, does not unfairly restrict mobility, nor is it unreasonably costly. Telemedicine makes it easy to practice medicine across state lines. Therefore telemedicine is a practice and licensing issue that every state must consider. In New York, the State performs its public protection role through the enforcement of the licensure laws. The practice of medicine through telemedicine in New York State by someone not authorized to practice in New York State may constitute the illegal practice of a profession, subject to investigation by the New York State Education Department and prosecution by the New York State Attorney General.
A critical issue in telemedicine is determining the definition of a physician-patient relationship. The references reviewed by the committee have some degree of variation in their definitions related to the general purpose of each document. Some general statements are self-evident in their identification of a physician-patient relationship, and certain types of telecommunication are easily identifiable as not constituting a physician-patient relationship. Health information sites accessed for general information only, without personal interaction, through electronic media are no different from accessing a reference text in a library, and do not constitute a professional relationship. The fact that most types of telemedicine practice are not reimbursed is irrelevant. The committee concluded that the following statement of ACOG is a clear and practical guiding principal:
"If a patient receives professional advice or treatment, even gratuitously, there is prima facie evidence that a physician-patient relationship exists."
New York State Education Law, Article 131, Section 6526(3) does permit a physician not licensed in New York State to provide occasional consultation to a physician licensed and registered in New York State to assist in the care of a patient (see section of law, Attachment 3). The work of this committee is not intended to restrict or redefine permissible consultations now available to and utilized by New York State physicians.
New York requires that a physician or physician assistant display his or her license and current registration at the practice site, and that patients or potential patients have access to that for their view. Physicians and physician assistants are obliged to be identifiable to their patients and failure to provide verification of identity may be misconduct. A patient must have the ability to identify the physician or physician assistant at the point of access. Therefore, it follows that in a telemedicine professional relationship there must also be some form of identification/certification that the physician or physician assistant on the professional end is the licensed, currently registered physician or physician assistant he or she purports to be.
Having engaged in a professional relationship via telemedicine, the physician or physician assistant must meet the same expectation of quality as in the traditional medical care process. Other expectations necessarily follow. The first are ethical issues and they include: The physician or physician assistant, having established a relationship, has a duty to be available for care when it is needed or to see that there is a reliable provision for care and advice. The fact that the advice or treatment occurred via electronic media does not change the requirement for follow-up care.
In telemedicine, as in face-to-face encounters, a medical record must be created and maintained according to prevailing medical record standards. The medical record is the means by which an episode of care is evaluated against the community standard. The standards of the medical record for content and clarity have been well established. The failure to meet the medical record standard is a frequently sustained and punishable charge in medical misconduct cases. The medical record serves to document the analysis and plan of an episode of care for future reference. It must reflect an appropriate evaluation of the patient’s presenting symptoms. Relevant components of the electronic professional interaction must be documented as with any other encounter. Personal communications with patients, not part of that medical record, should be archived separately from the medical record. The medical record is the means of transferring information to another practitioner or appropriate individuals and entities. The medical record is also a legal document and is evidentiary material in legal matters. The standards of confidentiality regarding medical records resulting from an electronic encounter are similarly required.
Telemedicine is another technological advance that physicians, physician assistants and patients will embrace in our never ending pursuit of restoring and maintaining optimal health. The field is changing rapidly, but we found that the existing tenets of professional conduct can be comfortably applied to the practice of telemedicine.
- For the purposes of this statement, physician-patient relationship refers to the professional relationship between patients and their physician or physician assistant.
Board for Professional Medical Conduct Special Committee on Telemedicine
- Roger Oskvig, M.D., Chair
- Denise Bolan, R.P.A.
- Alan Kopman
- Randolph Manning, Ph.D.
- Sharon Mead, M.D.
- Mary Patricia Meagher, R.N.
- Peggy Murrain, Ed.D.
- Thea Pellman
- Winston Price, M.D.
- Garry Schwall, R.P.A.
New York State Board for Professional Medical Conduct Committee On Telemedicine Reference Materials
- American College of Obstetrics and Gynecology: Committee Opinion on Telecommunication in Medicine
- American Counseling Association, Ethical Standards for Internet On-line Counseling
- American Journal of Law & Medicine, 26(2000)
- "Regulating Medical Practice in the Cyber Age: Issues and Challenges for State Medical Boards"
- American Journal of Law & Medicine, 25(1999)
- "Broadcasting Clinical Guidelines on the Internet: Will Physicians Tune In?"
- "Cyber-Malpractice: Legal Exposure for Cybermedicine"
- "Informed Consent in the Electronic Age"
- "Online Without a Net: Physician-Patient Communication by Electronic Mail"
- "Telemedicine and Integrated Health Care Delivery: Compounding Malpractice Liability"
- Annual Reviews in Public Health, 2000, vol. 21
- "Telemedicine: A New Health Care Delivery System"
- Canadian Medical Association Journal, 15 November 1997:157(10)
- "When Medicine Moves to the Internet, Its Legal Issues Tag Along"
- Commonwealth of Massachusetts Investigative Report on CyberDocs
- Department of Health Regulations, Title 10 Section 80.63, Prescribing Controlled Substances and Prohibited Referrals
- Drug Benefit Trends, "How Telemedicine Can Help Patient Drug Compliance"
- Federation of State Medical Boards Internet Prescribing Overview by State
- Federation of State Medical Boards, "Model Act to Regulate the Practice of Medicine Across State Lines"
- Federation of State Medical Boards Newsline, "Practicing Medicine Over the Internet"
- Federation of State Medical Boards, "Report of the Special Committee on Professional Conduct and Ethics"
- Federation of State Medical Boards Telemedicine Overview by State on Current Legislation
- Internet Medicine, "Point and Click Prescriptions: Pros and Cons of Online Pharmacies and Guides for Use"
- Journal of the American Medical Association, 21 October 1999, vol. 282, No. 15
- "Legal Issues Concerning Electronic Health Information: Privacy, Quality and Liability"
- Journal of Psychiatry, "Telepsychiatry: Thirty-Five Years Experience"
- Joint Commission on Accreditation for Hospitals, Comprehensive Accreditation Manual for Hospitals, Medical Staff Chapter
- Medical Tribune, "Doctors Find Web Sites Save Them Time"
- Memorandum from Massachusetts Director of the Board of Medicine on CyberDocs
- Minnesota Board of Medical Practice Update, "Intruders"(preservation of the physician-patient relationship)
- New York State Board of Regents Report, December 1999, "Telepractice"
- New York State Education Department, Office of the Professions, April 1997, Letter on Telemedicine
- New York State Department of Health, November 30, 1999, Opinion Letter on Provision of Services by a Physician Not Licensed in New York
- New York State Education Law on the Practice of Medicine, Article 131
- Oncology Issues, "On the Internet: A Third Opinion"
- People Magazine, "Ship Shape – A Boston Doctor Helps Save a Lone Russian Sailor s Life by Making a High-tech House Call to the High Seas"
- Star Tribune, "Medtronic to Start Network Using Internet to Link Patients at Home to Doctors In Office"
- The Elizabeth Reporter, "Telemedicine"
- The Federal Trade Commission: Statement Prepared on "Consumer Protection in Cyberspace: Combating Fraud on the Internet"for the House Committee on Commerce, United States House of Representatives
- The Lancet, "Medical Diagnosis in the Internet Age"
- Telemedicine Today Magazine: "An Overview of State Laws and Approaches to Minimize Licensure Barriers"
- Times Union, "System Verifies Doctors Web ID"
- "Grant Lets Doctors Make Internet House Calls"
- USA Today, "The Prescription: Take 2 Aspirin and e-mail Me at Once"
- "On-line Prescription Services Leave Patients Pleased But at Risk"
- USA Today, "As Information Flies, Privacy Could be Dead on Arrival"
New York State Board for Professional Medical Conduct Committee on Telemedicine
NYS Education Law Article 131, Medicine §6526. Exempt persons.
The following persons under the following limitations may practice medicine within the state without a license:
- Any physician who is employed as a resident in a public hospital, provided such practice is limited to such hospital and is under the supervision of a licensed physician;
- Any physician who is licensed in a bordering state and who resides near a border of this state, provided such practice is limited in this state to the vicinity of such border and provided such physician does not maintain an office or place to meet patients or receive calls within this state;
- Any physician who is licensed in another state or country and who is meeting a physician licensed in this state, for purposes of consultation, provided such practice is limited to such consultation;
- Any physician who is licensed in another state or country, who is visiting a medical school or teaching hospital in this state to receive medical instruction for a period not to exceed six months or to conduct medical instruction, provided such practice is limited to such instruction and is under the supervision of a licensed physician;
- Any physician who is authorized by a foreign government to practice in relation to its diplomatic, consular or maritime staffs, provided such practice is limited to such staffs;
- Any commissioned medical officer who is serving in the United States armed forces or public health service or any physician who is employed in the United States Veterans Administration, provided such practice is limited to such service or employment;
- Any intern who is employed by a hospital and who is a graduate of a medical school in the United States or Canada, provided such practice is limited to such hospital and is under the supervision of a licensed physician; or
- Any medical student who is performing a clinical clerkship or similar function in a hospital and who is matriculated in a medical school which meets standards satisfactory to the department, provided such practice is limited to such clerkship or similar function in such hospital.
- Any dentist or dental school graduate eligible for licensure in the state who administers anesthesia as part of a hospital residency program established for the purpose of training dentists in anesthesiology.
If you have legal questions concerning telemedicine and telehealth practices, HIPAA legal issues, health care reform questions, or other health law matters 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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