Issues in Telemedicine

By Andrew M. Knoll, MD, JD
Tuesday, December 27, 2016

A very hot topic today is telemedicine. This has been brought about in no small part by the New York insurance parity laws that became effective on Jan. 1, 2016, whereby payors now had to pay for a service delivered by telemedicine in the same manner the payor would have paid for that service if performed in a face-to-face encounter.

Not surprisingly, given the technology involved, non-physician entrepreneurs are developing startups and are actively seeking to recruit physicians to provide the actual medical services. The technology, however, has outpaced the law, and an unwary practitioner could find him or herself in trouble for violating professional standards of care.

There are different definitions of telemedicine. One definition, found in the New York Public Health regulations, defines telemedicine as “the use of synchronous, two-way electronic audio visual communications to deliver clinical health care services, which shall include the assessment, diagnosis, and treatment of a patient, while such patient is at the originating site and a telehealth provider is at a distant site.”

Two important phrases are contained in this definition. The first is “synchronous, two-way,” which means real-time interaction between the physician and patient. Uploading a picture on a website and the physician later viewing the picture is not telemedicine — although this type of arrangement, referred to as “store and forward technology,” is encompassed within the wider definition of telehealth and is appropriate in certain settings, like teleradiology. The second important phrase is “audio visual communications” — a telephone conversation is not sufficient. I have clients who have been recruited to participate in telephone-based “telemedicine” ventures that I have counseled against their participation.

Assuming the threshold of proper communications is met, then the next issues are licensure and jurisdiction. Every jurisdiction that I am aware of defines the practice of medicine to be occurring where the patient is located, not the physician. Thus, a physician who is licensed only in New York who wishes to practice telemedicine must ensure that her patient is also located in New York. Failure to do so could result in the physician being charged with unauthorized practice of medicine in the other state, which typically is a crime.

What is probably the most controversial area is the standard of care (SOC). At this time, there is no separate SOC for telemedicine. To the contrary, most jurisdictions, including New York through the BPMC’s Standards for Telemedicine, have stated that a telemedicine practitioner will be held to the same SOC as expected in a face-to-face encounter. The biggest problem in meeting this SOC is how to accomplish a physical examination. This is a reason psychiatry was an early adopter of telemedicine. No need for a physical. Some states, like Florida, have express regulatory requirements for a physical examination. Texas goes even further and has an express regulation requiring an initial face-to-face encounter before a prescription may be written for a given patient. In other states, like New York, the requirement is strongly implied from guidance issued from regulators. Furthermore, the parity laws require payment for the same service. One cannot bill a 99213 without performing a problem-focused physical examination. This physical examination requirement is very important and, in my opinion, an area where regulators such as OPMC will focus their attention. Guidance also mentions other SOCs, such as maintaining confidentiality and a patient record, but these standards are readily met with the existing technology. Interestingly, entrepreneurs have recognized this, and there are companies that manufacture kiosks containing video otoscopes, electronic stethoscopes and the like to meet this requirement.

One philosophical question with significant legal importance is whether there should be a separate SOC for telemedicine. When I was a practicing physician, it was perfectly permissible to call in a prescription based solely on a telephone call with a patient. In certain circumstances, jurisdiction is established by the physician’s location, not the patient. For example, Florida’s pharmacy laws permit an out-of-state physician to call in a prescription for a patient residing in Florida. It remains to be seen whether a court would find it arbitrary and capricious to prohibit a telemedicine physician from engaging in conduct that has been traditionally condoned for on-call physicians. In the interim, you do not want to be that test case, and my advice to my clients remains that if they wish to engage in telemedicine, then the physician must be licensed in the state where the patient is located, there has to be real-time, interactive, audiovisual communication, and all the usual standards of care of a face-to-face encounter, including a mechanism to perform an adequate physical examination, are met.


Andrew Knoll is a member of CCBLaw, a boutique law firm focused on providing counsel to physicians and other healthcare professionals. He can be reached at 315-477-6241 or aknoll@ccblaw.com.