By Bala Mohan, JD, ByrdAdatto

Telemedicine is gaining popularity and acceptance across the United States. Some of the benefits of telemedicine include easing health care access to patients in remote and underserved areas, increasing cost-effectiveness, efficiently delivering health care service, and broadening the opportunity to receive secondary opinions. Telemedicine, in a nutshell, is the provision of health care services using telecommunication from a health care practitioner in one location to a patient in another. However, telemedicine compliance is tricky and varies from state to state. In addition to state laws, telemedicine also is subject to federal reimbursement, patient privacy and confidentiality laws.

This article will focus on the basic state law compliance considerations and general rules for providing telemedicine in your medical practice; however, any decision to provide telemedicine requires deeper scrutiny of the laws and regulations.

1. Licensure. Clients commonly ask if they can provide telemedicine to a patient in another state. Typically, the practitioner providing the service must be licensed in the state where the patient is physically located. However, as with everything else in law, there are exceptions. For example, Maryland exempts physicians licensed in an adjoining state from obtaining a Maryland license, and Minnesota has a provision for physicians not licensed in the state to practice medicine in Minnesota via telemedicine by meeting certain telemedicine registration requirements. Appropriate physician licensure is a necessity when practicing medicine across state lines because providing telemedicine services in a state where the practitioner is not licensed can result in disciplinary action—including civil or criminal penalties—for the unlicensed practice of medicine.
2. Standard of care. Practitioners using telemedicine will be held to the same standard of care that would apply to the provision of health care services in an in-person setting. To meet the standard of care, the practitioner must, at a minimum, establish a valid practitioner-patient relationship, provide quality health care service, obtain appropriate informed consent, document and maintain accurate patient medical records, and abide by the patient and medical record confidentiality standards required by law. Performing a proper initial consultation is a key aspect of establishing the practitioner-patient relationship; thus, an appropriate patient examination or evaluation is an important part of meeting the standard of care. Physicians must take the patient history and conduct a thorough evaluation of the patient's medical condition prior to diagnosing the patient and prescribing the treatment plan.
3. Establishing a valid practitioner-patient relationship. As the initial step, telemedicine laws usually require the practitioner to establish a valid practitioner-patient relationship, if one does not already exist. The legal requirements and process to establish this relationship vary by state. Generally, if a prior practitioner-patient relationship does not exist, it can be established via telemedicine using appropriate means. Some states may have restrictions as to the physical location of the patient for the patient evaluation or the telecommunication modalities that can be used in practicing telemedicine. However, filling out online questionnaires, telephone calls or text messages alone are not sufficient to establish the practitioner-patient relationship. Generally, acceptable telecommunication means use real-time streaming audio-visual technology or streaming audio coupled with store-and-forward technology.
4. Reimbursement. Reimbursement for telemedicine services also varies widely amongst states. Accordingly, health care practitioners must review their respective payor contracts prior to billing for telemedicine services. For example, Texas has parity laws that require private payors to reimburse the same way as would be required in-person. On the other hand, Florida allows the payor and provider to negotiate the reimbursement rate for telemedicine services.

As you can see, a myriad of legal issues must be considered prior to engaging in telemedicine practice. If you have specific questions about setting up a telemedicine practice, the telemedicine laws in your state, contact ByrdAdatto, and consider attending The 2020 Medical Spa Show from January 31 – February 2 at the Aria Resort & Casino in Las Vegas. The Medical Spa Show is the premier trade show for non-invasive medical aesthetics, and this year's iteration features four tracks of curated education covering practically every topic a medical spa owner/operator would need to know about, as well as two tracks of sponsored education. Click here to register today.

Bala Mohan, JD, knew from a very young age that her choice of career would be related to science because she excelled in her biology and chemistry coursework. With a strong passion for genetics and the desire to find a cure for her mother—who was diagnosed with diabetes at an early age—Mohan obtained a Bachelor of Technology in Pharmaceutical Biotechnology. Having worked as a scientific researcher during her undergraduate studies, Mohan greatly values attention to detail and is a meticulous person. She then pursued a master's in Entrepreneurial Biotechnology to gain knowledge about business and startups. This landed her a position with Cleveland Clinic Innovations, where she evaluated over 100 innovations and negotiated deals with potential investors. In this role, Mohan had the opportunity to interact with business and health care lawyers from multiple health care organizations, and she quickly realized that her real calling in life was to be a health care attorney. Subsequently Mohan obtained her JD and was able to pursue a career that combined all her interests—science, business, and law.