Lesser Known Legal Hurdles for Telemedicine
To say that medical practice law is fractured is an understatement. So, it's important for physicians to be familiar with their states' Medical Practice Acts.
Even conscientious doctors who make an attempt to understand the laws governing the practice of medicine can make mistakes. I know of one case in which a physician began doing Internet prescribing because he read the Medical Practice Act in his state and could not find in it a statement that said it was against the law. For those of you who aren't familiar with Internet prescribing, it's illegal in all states with one exception; in order to prescribe prescription medication, most statutes do not mention the Internet, but do require a physical examination and a complete medical history to establish a doctor-patient relationship. Rogue pharmacies often use questionnaires for the medical history part, but sidestep the requirement for an examination. Medical boards have disciplined physicians caught doing Internet prescribing and in some extreme cases the doctors have lost their medical licenses. More on the doctor-patient relationship in a moment.
Because there are legal pitfalls doctors should be aware of in telemedicine, Alexis Slagle Gilroy and Kristi V. Kung with the law firm of Nelson Mullins Riley & Scarborough LLP in Washington, D.C., have written an excellent article that describes some of the lesser known challenges. In "Telemedicine Legal Hurdles - An Overview of Lesser Known Challenges
," Gilroy and Kung first talk about the familiar legal topics - licensure and credentialing obligations. Supervision of certain licensed and unlicensed personnel, requirements for establishment of a doctor-patient relationship, and the corporate practice of medicine are rarely addressed, but should be.
The authors note that state medical boards are largely silent on the application of supervision requirements within telemedicine. Why is this important? Because doctors are supposed to supervise the performance of certain diagnostic tests. And there are different supervision thresholds depending on the test and the lower-level healthcare provider. "General Supervision" means the physician has been involved in the overall direction and control, but his or her presence is not required. "Direct Supervision"means the doctor has to be present and available if needed, but not in the room when the procedure takes place, while "Personal Supervision" means the physician is present in the room during the procedure. Many Medical Practice Acts make these distinctions in describing the supervision of those lower-level providers involved. Does the supervising physician's presence by videoconference meet the "direct" or "personal" supervision levels? Unfortunately, there is no pat answer because the laws vary from state to state.
Gilroy and Kung use Arizona and its unlicensed medical assistants in one example. The supervision onus is on the physician. A doctor must directly supervise a medical assistant, but can that be done via videoconferencing when the MA is on the patient end of the telemedicine visit? It depends on the Arizona Medical Board which licenses MDs and the Arizona Board of Osteopathic Examiners which handles DOs. To date, I know of no such telemedicine complaint case filed with either board that would set a precedent one way or the other. If needed, a board could formulate a new rule, or the State Legislature could update the statutes. Here in Arizona, medical assistants are used everywhere, and ignorance is bliss. Elsewhere, doctor supervision of licensed providers like nurses and physician assistants is not as specific.
For comparison purposes, Nevada requires its medical assistants to be supervised by physicians, but doesn't define the supervision.
As mentioned above, the doctor-patient relationship is important when it comes to prescribing prescription medication. Arizona and other states require an "in-person," or face-to-face, physical exam first. Some states have updated their Medical Practice Acts to allow the exam to be done via telemedicine, especially when the patient is in a prison or other institutional setting where it would be inconvenient for the patient to come to the doctor, and that makes sense. Recently, Georgia's medical board considered a proposed rule that would have required a patient to have a prior visit to a doctor before they could be seen telemedically by a nurse practitioner or physician assistant. Thankfully, stakeholders argued successfully against it, and it has died a silent death.
Then there is the issue of the Corporate Practice of Medicine that Gilroy and Kung touch on. Some states have corporate practice doctrines that make medical practices subject to corporate practice prohibitions pertaining to general corporations which are not permitted to practice medicine or to employ physicians. Where these exist, there may be a legal way around them using a "friendly PC/MSO structure," whatever that is.
Arizona does not have a limitation on who may own a physician practice. So, there are non-physicians running companies and corporations, other than hospitals, that employ physicians in a medical practice. What's interesting is the non-physicians are beyond the jurisdiction of the Arizona Medical Board, but the physicians are not. So, let's say such a business decided that it didn't want to follow state law and provide a patient's medical records to a physician who left the medical practice and who was the patient's doctor. No legal requirement for the business, but the medical board could hold the physician responsible even though he had no access to the records after leaving the practice run by the non-physician. Sounds crazy, but it almost happened here.