Legal Considerations in the Practice of Telemedicine

Published: 28 March 2017

The development of technology has facilitated providing health care to patients through the use of electronic communication. In some circumstances, physicians can see and treat patients via video conference applications on computers and mobile devices. This innovation of telemedicine has the potential to significantly reduce time and medical costs. Physicians contemplating practicing telemedicine should seek legal counsel for assistance in navigating the legal issues related to licensure, malpractice insurance coverage, and health information confidentiality.

Licensing Considerations

Telemedicine involves the use of electronic communication, information technology or similar means between a physician in one location and a patient in another location. Technology allows telemedicine to occur across state borders. A vast majority of states require the physician to be licensed in the state where the patient is located. Some states offer special purpose licenses for telemedicine, while others have created specific exceptions for out-of-state radiologists and physicians who consult with in-state physicians.

In an effort to streamline the licensing process for physicians seeking licensure in multiple states, the Federation of State Medical Boards created the Interstate Medical Licensure Compact. The Compact has been enacted as law in 18 states, including Kansas. The Compact creates another pathway for licensure, but otherwise does not change a state’s medical practice act. The physician must meet specific criteria to be eligible for the streamlined licensure process under the Compact.

The Compact does not create a single, national license. Oversight and regulatory authority remains with the Compact-member state medical boards. Physicians practicing under the Compact must comply with each state’s statutes, rules and regulations. This means licensure fees, CMEs, and other state requirements will apply.

Malpractice Insurance Coverage

While many insurers provide malpractice insurance for telemedicine, not all have adopted this coverage. In 2014, the Physician Insurers Association of America reported that 18 out of 19 of its member companies provided malpractice insurance for telemedicine. However, 13 of those 18 reserved the right to selectively deny coverage. Additionally, policies offered may not cover telemedicine across states lines, or may entail special requirements or limitations.

Security and Confidentiality Considerations

Because the practice of telemedicine necessitates accessing and transmitting PHI, physicians should meet or exceed applicable federal and state legal requirements of medical information privacy, including compliance with HIPAA and state privacy, confidentiality, security and medical record retention rules. In order to protect electronic protected health information (ePHI) physicians should consider putting certain safeguards in place when practicing telemedicine.

While telemedicine can be a valuable tool for providing medical services, it can be wrought with legal pitfalls if not carefully and prudently implemented. If you are applying for licensure to practice telemedicine in Kansas or if you are a Kansas practitioner considering or practicing telemedicine in Kansas or other states, contact the attorneys at Joseph, Hollander & Craft for assistance.

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