TELEMEDICINE: LAWS MAY EVOLVE AS QUICKLY AS TECHNOLOGY
Complex legal questions are being raised by the emergingThis is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.
practice of telemedicine, especially as providers begin to offer
"interstate information transfer" and other state-to-state
telemedical services. TELEMEDICINE TODAY's "ViewPoint" column
highlights "some of the more pressing legal questions" including
how to: license providers; define the "practice of medicine";
determine whether telemedicine is "'exempted' under state laws
permitting 'consultants'"; and define telemedical malpractice,
including the jurisdictional issues regarding interstate
telemedicine. "To readily keep pace with telemedical
developments, the law will need to accommodate new practices or
be changed to recognize such developments," writes Stephen
Schanz, editor of TELEMEDLAW, a quarterly review on issues
related to telemedicine. While a federal telemedical license may
eventually be a reality, states are already tackling telemedicine
issues.
CALIFORNIA: Currently pending before the California
Legislature is a "significant and comprehensive telemedicine
bill," according to Schanz. The Telemedicine Development Act (SB
1665) addresses "many facets of telemedicine." It defines
telemedicine as "the practice of health care delivery, diagnosis,
consultation, treatment, transfer of medical data, and education
using interactive audio, video and data communications." The
bill also mandates that providers of telemedicine secure verbal
and written "informed consent" from patients "prior to a
telemedicine encounter." The bill would also require that no
health plan, including Medi-Cal, can mandate "face-to-face
contact between patient and provider for services appropriately
tendered via telemedicine." Schanz notes that the bill, which
has passed the Assembly Appropriations Committee, "appears to
have widespread support and little, if any, opposition."
MISSISSIPPI: In December 1995, Mississippi Attorney General
Mike Moore (D), issued an opinion that providers of telemedicine
who were treating Mississippi patients from out-of-state were not
subject to state medical licensing rules. In his ruling, Moore
said he "recognized the Mississippi State Board of Medical
Licensure's position that physicians rendering" telemedical
services in the state should be licensed by the state. However,
he concluded that "an out-of-state physician, not physically
practicing within the state, is not 'practicing medicine,'" as
defined by the state's medical licensure statute. He also
"indicated [that] the state Legislature is the body with control
over a change in the licensure statute," and not the licensing
board.
OKLAHOMA: In May of this year, the Oklahoma Legislature
amended its "practice of medicine" definition to include
"diagnostic or treatment procedures done via electronic
communication, on a patient inside the state, by someone outside
the state." The legislation specifically includes "transmission
of radiographic images, by out-of-state physicians that provide
written reports on a regular basis." Under a "plain and
ordinary" interpretation of the amendment, a provider would need
an Oklahoma medical license to "diagnose or treat" a patient in
the state. However, nonresident physicians who consult with in-
state doctors on an "irregular basis" would not need licenses,
according to the amendment.
TENNESSEE: Tennessee has taken another approach to
telemedicine, expanding its medical licensure law to include "the
issuance of a 'special license' for the limited purpose of
practicing telemedicine." Physicians wishing to qualify for the
special license must have a medical license from another state.
CONCLUSIONS: Schanz concludes, "Until some type of national
regulatory format is put into place, practitioners will need to
be vigilant in monitoring regulatory changes occurring in the
states. State statutes, state attorney general opinions, medical
licensing board interpretations and rulings, and court decisions
will need to be carefully observed in hopes of determining their
impact upon telemedicine practice and insuring operational
compliance in this emerging field" (July/August 96 issue).