Telemedicine licensure and related challenges for physicians

While the availability and use of telemedicine services is increasing annually, healthcare providers engaged in providing telemedicine services must carefully navigate numerous regulatory obstacles. Failure to abide by applicable laws may jeopardize the licensure of the healthcare provider, result in monetary fines and penalties, and increase potential exposure to medical malpractice claims.

Following state rules

Licensure presents the most obvious obstacle to the growth of telemedicine services, as state laws governing the provision of telemedicine services differ widely. Generally, healthcare providers are required to be licensed in the state in which the patient receiving the services is located. Certain states, like Texas, offer a special license for the provision of certain types of telemedicine services. 

This article appears in the 4/10/18 issue of Medical Economics.

Other states, such as California, allow for limited consultations by out-of-state practitioners without licensure. In evaluating the licensure requirements for the provision of telemedicine services in any state, healthcare providers need to carefully consider the nature and frequency of the services they will provide. For clinicians rendering telemedicine services in multiple states, this can be a time-consuming and costly endeavor.

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Obtaining multi-state licensure is only part of the challenge for providers, however. Healthcare providers practicing telemedicine in multiple states are also required to adhere to the standards of medical practice in each state, and state standards of practice vary considerably. For example, in Colorado, the practice of medicine is defined broadly and encompasses telemedicine.

To guide physicians, the Colorado Medical Board has issued a rule for the appropriate use of telehealth technologies in the practice of medicine. However, other states have considerably less guidance available or have not issued any unique laws or regulations concerning telemedicine services. 

Adding to the complexity, there is no one location for a provider to find the applicable rules. In some states, these rules are found in statutes and regulations. In other states, they may be found in the rules, policies, and procedures of the state licensing boards. 

Awareness of other laws

Healthcare providers also need to be aware of federal and state laws governing the privacy and security of medical information and ensure the technology they are using complies with applicable laws. In addition, the availability of reimbursement for telemedicine services varies widely from state to state and should be considered when structuring any arrangement for the provision of telemedicine services. The Medicare Anti-Kickback Statute and the Physician Self-Referral law (also known as the Stark law) and similar state laws may also apply to arrangements for telemedicine services. Lastly, the prohibition on the corporate practice of medicine  in certain states may also impact what type of entity may provide telemedicine services.

While telemedicine services have the potential to offer significant benefits to the general population, the government, and the healthcare industry through reduced costs and increased access to care, the technology is advancing at a faster pace than the law. 

Marcie M. Damisch, JD, LLM, is a shareholder in Stradling’s Corporate practice group. Her practice is focused on the representation of healthcare providers and related entities.