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Telemedicine law - legal rules continue to confuse and inspire

By Michael H. Cohen, Esq.

Telemedicine laws are the Rubik's Cube of future health care and statutory research the Penrose staircase of salvation.

With health care shifting from the clinic to the Internet, practices are increasingly looking to telemedicine, telepsychiatry and telehealth.  There are several sites online that say they compile state laws and give a handy summary.  This can be useful, but also a trap for the unwary.

Legal research is complex.  Health care lawyers and telemedicine attorneys must find the most up to date guidance and sometimes the statutes online are out of date, as are the industry summaries.  Every state frames its telemedicine laws in unique ways.

Here is an unusual example from Colorado's medical licensing laws.

 Colorado defines "telemedicine" to mean 'the delivery of medical services and any diagnosis, consultation, or treatment using interactive audio, interactive video, or interactive data communication.'[1] 

            Colorado defines the 'practice of medicine' (which requires a license) to include telemedicine:

[2]

 (1) For the purpose of this article, "practice of medicine" means: (a) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever….

(g) The delivery of telemedicine. Nothing in this paragraph (g) authorizes physicians to deliver services outside their scope of practice or limits the delivery of health services by other licensed professionals, within the professional's scope of practice, using advanced technology, including, but not limited to, interactive audio, interactive video, or interactive data communication.

             Paragraph (g) suggests that those health care professionals who are licensed and legally practicing within their authorized scope, may incorporate telemedicine practices in-state; however, this does not physicians who are not licensed in Colorado to practice telemedicine. As the law further makes clear:

[3]

(2) If a person who does not possess and has not filed a license to practice medicine or practice as a physician assistant in this state, as provided in this article, and who is not exempted from the licensing requirements under this article, performs any of the acts that constitute the practice of medicine as defined in this section, the person shall be deemed to be practicing medicine or practicing as a physician assistant in violation of this article.

            Curiously, in its exemptions to the requirement of a medical license, Colorado includes the following:

(3) A person may engage in, and shall not be required to obtain a license or a physician training license under this article with respect to, any of the following acts….

(b) The occasional rendering of services in this state by a physician if the physician:

(I) Is licensed and lawfully practicing medicine in another state or territory of the United States without restrictions or conditions on the physician's license;

(II) Does not have any established or regularly used medical staff membership or clinical privileges in this state;

(III) Is not party to any contract, agreement, or understanding to provide services in this state on a regular or routine basis;

(IV) Does not maintain an office or other place for the rendering of such services;

(V) Has medical liability insurance coverage in the amounts required pursuant to section 13-64-302,[4] C.R.S., for the services rendered in this state; and

(VI) Limits the services provided in this state to an occasional case or consultation.

            This provides limited leeway to 'occasionally consult' with patients within Colorado.

 

Our attorneys' legal advice includes both federal and state law, and we advise clients on how to minimize their legal exposure.  "Don't roll the dice, get legal advice!"

 

Michael H. Cohen is an experienced health care law attorney who has taught health care law and policy at Harvard University and counseled many different kinds of practitioners and businesses, including:

• physicians (MD's and DO's)
• physician groups, hospitals, and clinical facilities
• integrative medicine centers
• professional health care educational institutions and associations
• dentists
• registered nurses and advanced practice nurses
• clinical psychologists
• chiropractors
• acupuncturists
• massage therapists
• homeopathic physicians and homeopaths
• naturopathic doctors and naturopaths
• energy healers, hypnotists, medical intuitives
• dietary supplement manufacturers and distributors
• cosmetics manufacturers
• entrepreneurs and start-ups
• publishers
• wellness clinics
• herbalists
• bio-energy companies
• medical device inventors
• telemedicine enterprises
• many varieties of businesses

As a founding attorney of a law firm at the cutting edge of health care and business law, he represents enterprises whose leaders are conscious and committed to a better world. He also offers the Entrepreneur's Legal Toolkit as a series of legal guides to businesses.

See what clients say about his legal work or visit the Legal Services page for information on business law and health care legal services.

Our healthcare law and business law firm also provides special expertise to attorneys and law firms whose clients are involved in wellness industry projects or who require guidance regarding such legal issues as:

• fee-splitting, Stark and anti-kickback
  
• medical board or other professional discipline
  
• negligence, informed consent, and medical malpractice liability
  
• HIPAA and patient privacy issues
  
• Medicare (including opting out vs. participation vs. non-participation)
  
• professional liability insurance and insurance (billing and coding) issues
  
• telemedicine, tele-psychiatry and telehealth
  
• other legal and regulatory compliance issues.

To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact our law firm today.

Full post as published by Complementary And Alternative Medicine Law Blog on February 23, 2011 (boomark / email).