1) Health Law Alert: Telemedicine Standards Approved
by the Leading Organization of State Medical Boards
June 12, 2014
Experts predict that the global telemedicine devices market will exceed $1B this year and that it will grow at a five-year
compounded annual rate of 56 percent. Several trends are driving the growth of this alternative care delivery model in the
United States: a growing population and increased demand for medical services, a projected physician shortage, a rapid
increase in older Americans, a lack of access to medical services in many parts of the country, an explosion in computerbased technology and electronic communications capabilities, and a consumer population that is increasingly at ease with
technology.
To address the myriad concerns of state medical boards in regulating this fast-growing and fast-changing mode of care
delivery, the Federation of State Medical Boards (FSMB), which represents all 70 state and territorial medical certification
bodies, recently adopted a Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine
(Model Policy). The Model Policy replaces the FSMB’s 2002 Model Guidelines for the Appropriate Use of the Internet in
Medical Practice and sets forth a number of safety and quality guidelines for the practice of telemedicine. While state
medical boards are not required to adopt the Model Policy, they are likely to use it to guide their approaches to the
regulation of telemedicine.
The Minnesota Board of Medical Practice is no exception. While Minnesota laws and regulations are some of the more
conducive to the practice of telemedicine in the country, the Board is closely studying the Model Policy. Further, legislative
changes to Minnesota’s Medical Practices Act may not be far off following the Medical Practice Act Work Group’s 2013
report to the Minnesota legislature. The group’s report identified the “evolution of Telehealth and the impact of technology
in the delivery of care” as an important issue to be addressed and noted the concern over whether Minnesota’s Medical
Practice Act “sufficiently addresses issues and concerns related to the evolving field.”
Below is a brief discussion of some of the key provisions of the Model Policy.
Definition of Telemedicine
Just as the technology behind telemedicine has been ever-changing, so has the definition of “telemedicine.” The Model
Policy defines it as “the practice of medicine using electronic communications, information technology or other means
between a licensee in one location, and a patient in another location without an intervening healthcare provider.” The
Model Policy provides that both secure videoconferencing and “store and forward” technology may be part of a
telemedicine practice but that, generally, audio-only, email and instant messaging technologies are not telemedicine. The
adoption of this definition was not without controversy, with a group of insurers, providers and patient advocates warning
that the definition could restrict access to telemedicine for those patients who were strictly reliant on audio devices, email
or text messages.
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2) In comparison, Minnesota law defines “telemedicine” more broadly as the practice of medicine “when the physician is not
in the physical presence of the patient” and does not restrict the technologies used in the practice of telemedicine.
Licensing
Most states require a provider to have a full, unrestricted licensed to practice medicine in the state where the patient is
located, and the Model Policy supports this position where the provider is practicing telemedicine. We see little chance of
state medical practice boards eliminating this requirement in the near future. Some may take the approach of Minnesota’s
board by allowing providers wishing to deliver telemedicine care to patients in their states to obtain a limited telemedicine
license, rather than require the provider to obtain a full, unrestricted license.
Establishing a Valid Provider-Patient Relationship
To establish a valid provider/patient relationship, many states require that the initial encounter between the provider and
patient be in person. This is often the biggest hurdle for providers seeking to practice telemedicine. The Model Policy
suggests that providers can establish a valid provider/patient relationship using telemedicine technologies – i.e., forego
the in-person initial encounter – as long as the standard of care is met. In our experience, even those boards in states
with stringent “in-person” requirements can be amenable to recognizing the establishment of a valid provider/patient
relationship via a telemedicine encounter. We are likely to see state boards adopt the approach of the Model Policy and
legislative changes consistent with that approach are likely not far behind.
Standard of Care
The Model Policy states that the same standards that have historically protected patients during in-person medical
encounters must apply to medical care delivered electronically, including the issuance of prescriptions electronically. Such
protections include a documented medical evaluation and the collection of relevant clinical history sufficient to establish
diagnoses and identifying underlying conditions and/or contract-indications prior to providing treatment. Every state
requires providers to meet a standard of care but not all recognize that it can be met using telemedicine technology.
Importantly, and consistent with the laws of several states, the Model Policy suggests that “treatment, including issuing a
prescription based solely on an online questionnaire, does not constitute an acceptable standard of care.” What
constitutes an “online questionnaire” is not always clear though and it will be up to state boards to determine, often on a
case-by-case basis, whether a provider’s telemedicine practice is “based solely on an online questionnaire.”
Disclosures and Functionality of Online Telemedicine Technologies
The Model Policy suggests a number of disclosures and functions that should part of an online telemedicine platform.
These requirements include the disclosure of fees; financial interests, other than fees charged, in any information,
products, or services provided; appropriate uses and limitations of the site, including emergency health situations; uses
and response times for communications transmitted via the telemedicine technologies; and a clear mechanism for
Minneapolis, MN | St. Cloud, MN | Washington, DC | Fargo, ND
© 2016 Gray Plant Mooty | gpmlaw.com
3) patients to access, supplement and amend PHI, provide feedback, and register complaints. It is likely that state medical
boards will be inclined to incorporate these requirements into their own telemedicine regulations.
You can find the FSMB’s Model Policy here.
If you have any questions about the Model Policy or telemedicine, please contact Jesse Berg at jesse.berg@gpmlaw.com
/ 612.632.3374.
Issues related to mobile health and telemedicine will be a featured topic at Gray Plant Mooty’s 18th annual Health Law
Seminar, to be held July 17th at the Depot in Minneapolis. For more information, click here.
Minneapolis, MN | St. Cloud, MN | Washington, DC | Fargo, ND
© 2016 Gray Plant Mooty | gpmlaw.com