Federation of State Medical Boards to Vote on Telemedicine Policy

by Tucker Arensberg, P.C.

The March 20th edition of Modern Healthcare reports on a “patient centered telemedicine policy” to be voted on by the Federation of State Medical Boards (FSMB).  I’ve attached links to both the article and to the FSMB model policy.  The model policy, if approved, will be a recommendation to state medical boards regarding telemedicine.

The Modern Healthcare article questions one holding of the policy, which maintains that physicians providing telehealth treatment to patients should be licensed in the state in which their patient is located.  The article suggests this will act as a barrier rather than a facilitator for telehealth. 

In my opinion, this will clearly be a barrier, but physician licensing within the various states or jurisdictions is clearly the purview of the state, and the medical boards created by the state.  Neither FSMB nor any other body has the authority to encroach upon what is traditionally known as the “police power” of the state to protect their citizens.  Unless the various states are willing to join together for some type of reciprocity or central telehealth licensing, this will always be an issue.

However, I think the proposed model policy is a crucial step with respect to adopting standards of care, and it addresses the following major issues:

  1. State Licensing – licensing is recognized as the purview of the state in which the patient is located. 
  2. Technology – the policy approves of the use of both synchronous and asynchronous (or store and forward) technology, but excludes the use of audio only (telephone), email or text messaging, or fax methods of communication. 
  3. Physician Patient Relationship – the policy recognizes that the physician patient relationship should be established by the substance of the agreement among the physician and the patient, and that it does not require a personal encounter, but acknowledges that this is a standard of care issue.
  4. Standard of Care – the policy acknowledges that the standard of care expected of the physician is not reduced by the use of telehealth, and makes it incumbent upon the physician to include the limitations of the technology with respect to the physician’s decision regarding diagnosis, treatment and prescription of medication. 
  5. Informed Consent – the policy recognizes that telehealth requires informed consent and not only with respect to the treatment, but also with respect to the use of the telehealth technology, and requires disclosure of the risks inherent in the use of the technology being used.
  6. Privacy and Security – the policy recognizes that the patients have the same rights to privacy and security of protected health information with respect to telehealth interactions as they do personal interactions, and part of the informed consent process is to require disclosure and consent if the technology provides less privacy and security that would be expected otherwise. 
  7. E-Prescribing – the policy imposes the same standard of care requirements on the prescription of medication as would be applicable to any other type of treatment.  This is a major recommendation because telehealth is now burdened by regulations of separate medical and pharmaceutical boards which, perhaps unintentionally, adopt different standards for diagnosis and treatment than they do for e-prescription of medication, which hampers the development of telehealth unnecessarily. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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