Legal Impediments to the Practice of Telemedicine Virginia Rowthorn, J.D. Managing Director, Law & Health Care Program University of Maryland School of Law

“Legal Impediments to the Diffusion of Telemedicine,” Journal of Health Care Law & Policy, Vol. 14, No. 1 (2011) (V. Rowthorn and D. Hoffmann) Physician licensure Credentialing and privileging Concerns about medical malpractice and professional liability insurance

Physician Licensure What is the issue? Every state has it’s own laws relating to practice of medicine within that state’s boundaries Those laws are enforced by state boards of medical licensure All medical boards perform essentially the same services but have different administrative structures and rules, A telemedicine practitioner who practices in more than one state will need multiple licenses (burdensome and costly). including the tests and procedures required for licensure in that state including law relating to medical record keeping, patient confidentiality, continuing medical education requirements, and mandatory reporting.

Private Companies Filling the Gap Knowing there is money to be made out there – private companies are offering to help practitioners with obtaining telemedicine licenses.

Licensure Models Uniform Application and Expedited License Full State Licensure National Licensure Interstate Collaboration Compact Special Purpose License National Licensure w/State Disciplinary Action From a scholarly perspective, there are multiple models for physician licensure

Professional Organization Positions FSMB supports an “expedited endorsement” model for licensure supported by a uniform application form. 33 state medical and osteopathic boards are now using (at some level) the uniform medical license application developed by FSMB but this has not led (yet) to a uniform process to license out of state practitioners. developed by FSMB. Although the uniform application was developed to encourage uniformity across the boards rather than to promote telemedicine, FSMB believes that the uniform application will make it easier for states to license out of state practitioners in a consistent and expedited manner.

Professional Organizations (cont.) American Telemedicine Association (ATA) supports a two prong approach: National preemption of state licensing laws for all physicians providing federally funded health services, i.e., services provided under Medicare and/or Medicaid. Interstate collaboration model which requires the establishment of a national multi-state clearinghouse where out-of-state physicians can register with other states. (This model is currently used by a number of nursing boards across the country)

State Laws The vast majority of states require out-of-state physicians who provide medical services to individuals in that state via telemedicine to obtain a full, unrestricted license (inc. MD) Most states have “consultation exception” for physician to physician communication Alabama, Minnesota, Montana, Nevada, New Mexico, Ohio, Oregon, Tennessee, and Texas now grant special purposes licenses for out-of –state physicians to practice telemedicine. What is really happening. Maryland Law COMAR 10.32.05.01 and Md. Code Health Occ. §14-302 Maryland follows the full state licensure model – specifically – if the patient is in Maryland, a full license to practice medicine is required. The only exception is for practice between Maryland and Washington DC with which Maryland has equivalent laws and a reciprocal relationship.

Special Purpose License Generally: Out-of-state physician may not have an office or practice in person in the state granting the Special Purpose License Out-of-state physician is subject to the rules of the state’s medical board Out-of-state practitioner must report any adverse actions from any other state to the state board of physicians.

Principles to Consider This is a highly political issue: Assurance of quality of care Protection of state’s rights Protection of trade from outside competition Important principle going forward: Any model adopted on the state or federal level should encourage uniform licensure rules across the United States and integration of licensure with national physician databases to ensure seamless and accurate licensing and policing of physicians. As to quality of care – while most discussion focuses on this issue – it may be the least compelling. All 50 states require passing all four tests of the United States Medical Licensing Exam (USMLE) for any physician to obtain a license to practice medicine. The test is the same in every state. The differences in requirements for a medical license between the states are fewer and fewer each year. The only substantive differences are in the number of years required for postgraduate training (1 or 2 years and generally 3 years for graduates of non-U.S. medical schools) and the number of attempts and time limit for completing the examination.

Credentialing and Privileging

Credentialing and Privileging Brouhaha in 2009 For years, the Joint Commission permitted “credentialing and privileging by proxy.” This meant that the originating hospital could rely on the credentialing and privileging decisions of the distant JC accredited facility. This was actually contrary to CMS Conditions of Participation that require all Medicare-eligible hospitals to credential and privilege all practitioners (whether telemedicine practitioners or not). In practice, many hospitals used Credentials Verification Organizations but did rely heavily on privileging by proxy.

In late 2009, CMS told the JC to prohibit privileging by proxy. Uproar in telemedicine community and fears that Small hospitals might:  Choose not to use telemedicine because of the cost and administrative burden of privileging all telemedicine practitioners. Privilege practitioners based on little or no background information about the actual qualifications of the practitioner. Physicians would not seek out telemedicine opportunities because of the administrative burden associated with becoming privileged in numerous sites and maintaining those privileges over time.

New CMS Rule On May 5, 2011 CMS published a rule (effective July 5, 2011) that allows a hospital to grant practice privileges to a telehealth provider by accepting the distant-site facility’s credentialing and privileging approvals for that provider. Lots of meetings on the Hill later . . . Distant site means – where the provider is located physically – often an academic medical center

New CMS Rule – Requirements Applies to arrangements between two Medicare-participating hospitals AND between a Medicare-participating hospital and “distant-site telemedicine entities” such as teleradiology, teleICU, and teleneurology. There must be a written agreement that ensures that the medical staff’s credentialing and privileging processes and standards at the distant-site “meets or exceeds the [CMS] standards.”

Guidance Sample written agreement between hospitals/entities available on Center for Telehealth and e-Health Law (CTeL) website: http://ctel.org/wp-content/uploads/2011/07/DRAFT-Credentialing-and -Privileging-Agreement-Between-Hospitals.pdf CMS guidance regarding Telemedicine Services in Hospitals and Critical Access Hospitals http://ctel.org/wp-content/uploads/2011/07/CMS-Credentialing-Privileging-Memo.pdf

Malpractice and Malpractice Insurance To date, very few telemedicine malpractice cases (of those cases, most relate to internet prescribing rather than negligent care administered through telemedicine.) Still - widespread assumption that telemedicine may pose new malpractice risks, particularly in matters of jurisdiction, choice of law, procedure and duty of care concerns.

Our Tentative Conclusions No indication of rise in telemedicine malpractice cases even as field grows. Telemedicine may not present many unique challenges in the area of medical malpractice. Many negligence cases involve actors from multiple states – this is not unique to telemedicine. Some commentators note that telemedicine may be safer because of multiple “eyes” on patient Still – hospitals may want to draft specific telemedicine informed consent forms and focus on privacy concerns that may be specific to telemedicine.

Professional Liability Insurance Divya Parikh, Director of Research at the Physician Insurance Association of America (PIAA) PIAA is continuing to collect data on telemedicine practice and associated liability claims. She confirmed that, to date, there have been very few cases of litigation and that she is not aware of insurers presently excluding coverage of telemedicine from their policies or charging higher rates because a practitioner uses telemedicine.

Over time, however, as the use of telemedicine grows, the industry will respond if cases against telemedicine practitioners create an additional burden on insurers. She advises that telemedicine providers ensure that their insurance covers telemedicine services and that practitioners ensure that their professional liability insurance covers them in all the states in which they practice medicine – in person or via telemedicine.

Thank you. Contact me if you have any questions: vrowthorn@law Thank you. Contact me if you have any questions: vrowthorn@law.umaryland.edu