Many health policy experts are betting on the expanded role of telemedicine as an essential cost-saving, quality (and access) enhancing tool. Yet legal and policy issues have dogged the development of useful telemedicine guidelines, making it difficult to know what’s ok and what’s not. What sort of licensure is required for physicians practicing telemedicine? When is the physician “practicing medicine” vs. “merely consulting?” When is a physician patient relationship established? Is one even necessary? The newly developed model policy developed by the Federation of State Medical Boards should help guide states in developing specific telemedicine standards.
The model policy adopted by the Federation provides the following core guidance—
● It defines telemedicine as “the practice of medicine using electronic communication, information technology or other means of interaction between a licensee on one location and a patient in another location with or without an intervening provider.”
●It states that it is not intended to alter existing state-based scope of practice or standards of care.
●It supports the notion that a physician patient relationship must be established in the context of telemedicine, including for instance taking a patient history.
The devil, of course, is in the details. The Federation notes, for instance, that it may be tough to pin point the start of the physician patient relationship, but is clear that the relationship is in fact commenced once the “physician agrees to undertake diagnosis and treatment of the patient, and the patient agrees to be treated, whether or not there has been an encounter in person between the physician (or other appropriately supervised health care practitioner) and patient.” Emphasis added. While the model policy skirts the issue of “treating vs. advising,” comments seem to indicate that “when in doubt, assume such a relationship has been established,” presumably with attendant licensure requirements and liability.
As far as licensure goes, the Federation thinks licensure should be required in the state where the patient is located (as opposed to where the physician is located). State laws need to be considered, however, since many will also likely require licensure in the state where the physician is located.
Telemedicine based prescribing protocols have long dogged many physicians. The hormone replacement industry, for instance, has often worked without proper clarity on this issue. Though the Federation policy is clear that prescribing “based solely on an online questionnaire, does not constitute an acceptable level of care,” physicians will have to refer to state law for more specific guidance.
The Federation’s focus on the need for proper informed consent is innovative and unique in the context of telemedicine, calling for the usual and complete protocol one would expect to find in a face to face encounter. Informed consent has not been an area focused on by Florida regulators, so the Federation’s guidance will be helpful.
Continuity of care is another issue that has eluded the topic. Here, the Federation states that “[p]atients should be able to seek…follow up care or information from the physician…..” This may be frustrating to physicians utilizing telemedicine on a more limited basis. For them, defining the beginning and end of the scope of their services (in writing!) will be especially important.
As far as medical records are concerned, it should come as no surprise that the Federation is supporting the notion that proper medical records should be created and maintained in the same way as in person encounters.
One of the big areas of controversy, telemedicine based prescribing, is left to the physician’s discretion. The Federation is punting the specifics to state medical boards.
Florida’s Take on Telemedicine
So how is Florida responding to the issue? In a very thoughtful and thorough way.
Current telemedicine standards are found in existing rule (64B9-9.014 and .90141, F.A.C.), which track the Federation’s thinking pretty closely (but incompletely), including—
●Stating that prescribing any medication based solely on an online questionnaire is below the requisite standard of care
●Requiring the following before treatment recommendations can be made:
A documented patient evaluation (including H&P)
Discussion of treatment options and risks/benefits
Maintaining medical records in the same way as an in person encounter
Opt outs are specified in the state regs for emergency care and also where there is another physician with an ongoing relationship with the patient.
Latest CMS Moves
CMS recently expanded the list or reimbursable telehealth services, to include payment for (i) services for rural health areas near big cities, (ii) annual wellness visits (AWV) via telehealth, (iii) psychoanalysis, and (iv) family psychotherapy.
The model policy developed by the Federation is one step on what will likely be a lengthy journey. We can expect the issues to be developed over time. In fact, this past legislative session introduced a very detailed law on the topic (which ultimately did not pass), which included provisions which—
●Contained exceptions for audio based calls, e mails and faxes
●Required Florida licensure for a physician located outside Florida treating a person located in Florida, and also required the physician be licensed in the state where he or she resided
●Required state registration when there are 10 or more telemedicine encounters each year and attached state based disciplinary provisions to that registration
●Excepted out of state consultation between physicians
●Clarified that telemedicine does not alter the existing standard of care
●Excluded the H&P requirement from the initial patient encounter
●Clarified that it is below the standard of care to (i) prescribe a legend drug based only on an electronic questionnaire without a visual examination, and (ii) prescribe via telemedicine a controlled substance for chronic non malignant pain
●Addressed payor related issues.
The one thing that is clear here is that, given the importance of telemedicine, more regulation will be developed and implemented.
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