Licensing
Licensing is one of telemedicine’s most confusing legal issues. All states require a license to practice medicine (traditional or telehealth) within their borders. Without that license, practicing medicine in the state is a crime. On top of being criminal, unlicensed practice can affect insurance, liability, billing, and malpractice coverage. When in a brick-and-mortar clinic, a physician’s confidence in practicing within the licensed jurisdiction is easy. Now, the distinction is not so clear. Patients and physicians no longer have to be in the same room, city, or even state, meaning there could be unknown conflicting laws between the two locations. With rare exceptions, standards of care are based on the patient’s location, not the physician’s location. This increases the risk of practicing without being correctly licensed to higher than ever.
Because licensing is a significant roadblock in providing telemedicine, efforts are underway to make the process simpler and more streamlined. The Federation of State Medical Boards developed the Interstate Medical Licensure Compact (IMLC).2 This can qualify physicians to practice medicine across state lines within the compact so long as they meet specific eligibility requirements. The IMLC creates a fast-track option for physicians to fill out one application and receive licenses from multiple states at once. Currently, the compact includes 32 states, the District of Columbia, and Guam.3
Informed consent
Telemedicine health care still requires informed consent from patients. In fact, in some states, the requirements for care provided through telehealth are actually stricter than requirements for informed consent obtained in person.
Most informed consent laws require physicians to cover the risks and benefits of a recommended course of treatment and all feasible and reasonable material alternatives. On top of this traditional informed consent, physicians must get additional consent to receive care over a telehealth platform. This unique requirement explains what telehealth is, possible risks and expected benefits, and security measures used to protect patient information. States vary regarding when verbal consent is sufficient, and when written consent is required.
Prescriptions
Telemedicine is still a relatively new industry, and few legal opinions specifically address telemedicine malpractice. However, prescribing medication based on telemedicine information is among the few issues the courts have addressed. A 2008 decision found that a physician review of patient questionnaires submitted over the Internet was insufficient to prescribe medication without a physical examination determining patient health.4 This cautious approach stemmed from telehealth’s early concern about the absence of patient-physician relationships and potential online pharmacy abuse. Since this decision, many states require an “in-person” visit with a patient before prescribing medication. The definition of what qualifies as an in-person visit varies from state to state – some still consider the use of real-time, audiovisual conferencing sufficient.
The law is still evolving for prescriptions. Some states don’t allow any prescriptions, while others allow physicians to prescribe their patients’ medications as part of an appropriate treatment plan according to their professional discretion. Almost every state prohibits the prescription of controlled substances based on telemedicine.
