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Telemedicine legal exceptions require careful scrutinty

By Michael H. Cohen, Esq.

You won't always find telemedicine legal exceptions in the telemedicine box of a given state's laws.

Some states lay out the whole telemedicine legal issue very clearly in a policy statement by the state medical board.  Still other states go even further and apply telemedicine law to psychiatry and mental health counseling, or call it telehealth (or tele-health) and lay out the laws and legal rules for various healthcare professionals.

But in other states, you have to find a capable attorney who knows telemedicine laws to find the applicable legal rules.  Sometimes, for example, the laws are sneaky and the telemedicine exception you need is tucked into a discussion of physician licensure.

For example, take this statutory language from Arizona:

"This article does not apply to any doctor of medicine residing in another state, federal jurisdiction or country who is authorized to practice medicine in that jurisdiction, if he engages in actual single or infrequent consultation with a doctor of medicine licensed in this state and if the consultation regards a specific patient or patients."

This is the consultation-only exception that is available in some states.  Note that it does not allow a physician to consult directly with the patient.

For non-physicians practicing complementary therapies, this language is also instructive:

"2. The administration of family remedies including the sale of vitamins, health foods or health food supplements or any other natural remedies, except drugs or medicines for which an authorized prescription is required by law.

3. The practice of religion, treatment by prayer or the laying on of hands as a religious rite or ordinance."

Once again, the exceptions are very specific. Of course, these do not constitute telemedicine but rather relate to carve-outs from the legal definition of the practice of medicine in ways that affect non-licensed CAM providers.

It turns out that in addition to the allowance for telemedicine consultations in the exception to the medical licensing law, Arizona also has a law specifically addressing telemedicine:

36-3602. Delivery of health care through telemedicine; requirements; exceptions

A. Except as provided in subsection E of this section, before a health care provider delivers health care through telemedicine, the treating health care provider shall obtain verbal or written informed consent from the patient or the patient's health care decision maker. If the informed consent is obtained verbally, the health care provider shall document the consent on the patient's medical record.

B. The patient is entitled to all existing confidentiality protections pursuant to section 12-2292.

C. All medical reports resulting from a telemedicine consultation are part of a patient's medical record as defined in section 12-2291.

D. Dissemination of any images or information identifiable to a specific patient for research or educational purposes shall not occur without the patient's consent, unless authorized by state or federal law.

E. The consent requirements of this section do not apply:

1. If the telemedicine interaction does not take place in the physical presence of the patient.

2. In an emergency situation in which the patient or the patient's health care decision maker is unable to give informed consent.

3. To the transmission of diagnostic images to a health care provider serving as a consultant or the reporting of diagnostic test results by that consultant.

It's what you don't know you don't know that hurt you.  Legal research means reviewing and uncovering and analyzing the laws that matter.

Telemedicine is a tricky arena.  Clients benefit from thorough legal research by an attorney who knows the telemedicine legal landscape.

Our 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 15, 2011 (boomark / email).