The COVID-19 pandemic created a paradigm shift in the world of telehealth and telemedicine by presenting challenges and opportunities to expand the delivery methods used to access healthcare. With the continued advancement of the technology behind it, telemedicine offered opportunities for healthcare practitioners to practice medicine across state lines when the patient was in a different state – further increasing access to healthcare services while the country was in quarantine. Recognizing an increased need for the use of telehealth and digital platforms, the federal government temporarily relaxed many federal regulations concerning telehealth. The HHS Office of Inspector General’s website states that “the use of telehealth increased dramatically during the first year of the pandemic” and that Medicare beneficiaries used “88 times more telehealth services during the first year of the pandemic than they did in the prior year.” This dynamic presented challenges for healthcare practitioners licensed to practice in their own state but not in the patient’s state, forcing them to understand the potentially limiting interplay of state laws across state lines.
Telehealth is the use of digital technologies to access healthcare services outside the traditional, in-person medical settings. More specifically, telemedicine refers to the remote clinical services while telehealth also includes non-clinical healthcare services. The state where the healthcare practitioner is located is referred to as the “home state”; the state where the patient is located is the “remote state”.
As the last few years have unfolded, telehealth – which was once limited by the federal government to only Medicare, Medicaid, and other beneficiaries receiving federal healthcare benefits who were residing in rural areas – has become an integral part of the post-pandemic world. It remains a moving target, however, especially given the temporary expansions put in place by the federal government and many states across the country. Accordingly, telehealth providers must continue to monitor developments in federal and state laws, regulations, and policies to not only capitalize on telehealth opportunities, but also to ensure compliance – especially with licensing requirements to avoid sanctions for the unlicensed practice of medicine – and to maintain the quality of healthcare.
The Tenth Amendment of the United State Constitution grants each state the power to control licensure. As such, when a healthcare practitioner provides medical advice via an online telemedicine platform to a patient residing in a remote state, the laws of the remote state govern. Therefore, to treat a patient in a remote state, the healthcare practitioner must, in almost all situations, have a license to practice in that state and will be subject to the laws governing that remote state.
To prevent licensure from being a significant roadblock to telemedicine, the Federation of State Medical Boards (the Federation) streamlined the process to make it easier for healthcare practitioners to treat patients in remote states. It developed the Interstate Medical Licensure Compact (IMLC) to qualify healthcare practitioners to practice medicine across state lines as long as they meet certain eligibility requirements. By creating a fast-track option to complete one application, the healthcare practitioner receives licenses from multiple states included in the IMLC and will be able to fully practice medicine in whichever remote state they obtain a license from. Indeed, the healthcare practitioner will remain subject to each remote state’s medical laws as the IMLC will not supersede any state’s law. Currently, thirty-two states, the District of Columbia, and Guam have entered the IMLC. New Jersey enacted and entered it on March 5, 2020.
The Federation also created a Model Policy for Appropriate Use of Telemedicine Technologies in the Practice of Medicine. Although it is not law, many states have adopted some, if not all, of the policies as their own telemedicine law. At a baseline, the Federation’s Model Telemedicine Policy requires a physician-patient relationship to provide telehealth services and the patient must have consented to the diagnosis and/or treatment irrespective of whether the initial encounter is in-person.
Those states which have adopted the Federation’s Model Telemedicine Policy face an interesting wrinkle when a healthcare practitioner treats a patient in a remote state if there is not a pre-existing physician-patient relationship. In this scenario, to establish the physician-patient relationship, the healthcare practitioner virtually treating a patient in a remote state must:
- Verify and authenticate the patient’s location and identity;
- Disclose and validate the identity of a remote provider if the healthcare practitioner is assisted by a provider in the remote state;
- Disclose the benefits and limitations of telemedicine consultation prior to obtaining appropriate consent; and
- Ensure the patient knows the identity of the healthcare practitioner.
Provided the healthcare practitioner is appropriately licensed in both the home state and the remote state, the healthcare practitioner is expected to practice informed consent and use the same standard of care as one would during an in-person visit. Additionally, the healthcare practitioner is expected to maintain accurate medical records, respect the patient’s privacy of those records, keep the exchange of information confidential, and otherwise abide by the laws and ethical responsibilities of both states. This could form the basis for various other sanctions pursuant to state and federal laws.
Given the evolution of telemedicine, healthcare practitioners providing telemedicine should consider how it is regulated not only nationally, but also from state to state, to avoid the unlicensed practice of medicine. The most critical considerations should always be establishing a patient-physician relationship and obtaining informed consent to avoid the potential for any grievances filed against the healthcare practitioner. Moreover, careful review and consideration of all applicable state and federal laws is important to ensuring a healthcare provider does not run afoul of a unique legal requirement, especially given the interplay between state and federal laws, in addition to potential limitations in payor agreements.