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Regulatory and Legal Issues

With various uses of telemedicine among specialties and practice location, it is important to understand how to conduct video visits properly.

Although the concept of conducting telemedicine visits is appealing to many physicians, it's important to understand the varied state regulations and legal concerns, such as malpractice and informed consent, before diving in.

Getting a feel for these issues will help you decide whether telemedicine is right for you.

Understand the Varied State Regulations

State regulations of telemedicine are notoriously byzantine and can be subject to change, as lawmakers reconsider policies and add new twists. Just in the first 4 months of 2019, for example, seven states passed laws on telemedicine. However, new laws usually make it easier to use telemedicine, which is the trend.

Dropping requirements that telemedicine doctors needed a preexisting relationship with the patient was a watershed change in state regulation—especially for telemedicine companies that never deal with patients face-to-face. Texas was the last state to drop this requirement in 2017. However, some states still require a preexisting relationship for prescribing, which will be discussed later.

Meanwhile, many states still limit the allowable modes of telemedicine. According to a 2019 report from the American Telemedicine Association (ATA), virtually all states and the District of Columbia allow synchronous telemedicine. But 16 states, including Florida and Georgia, allow only synchronous transmission; 29 states and the District of Columbia also allow store-and-forward telemedicine, which involves saved text and images; and 22 states and the District of Columbia also allow remote patient monitoring, the ATA reports.

Some states limit remote patient monitoring to certain patients. For example, Arizona limits it to patients who have congestive heart failure and it requires a certain hospitalization history, the ATA reports.

In addition, 23 states specify where the patient can be located for telemedicine, called the "originating site," according to the Center for Connected Health Policy (CCHP). Thirteen of these states allow the originating site to be in the home, though special conditions often apply, the CCHP states.

When the originating site is a healthcare facility, Alabama, South Carolina, and Virginia require that trained staff or providers be at least immediately available to the patient, according to the ATA.

Keeping up with changing state regulations can be confusing. The ATA and CCHP offer yearly reports that are online and break down regulations by state. Yearly reports, however, may miss recent developments in state regulations. You may be able to get more up-to-date information from organizations that always have to keep current.

Telemedicine providers and telemedicine software companies have to keep up to date, and sometimes they are willing to share their information. You might also contact your commercial payers. They have to keep up to date with regulations in order to determine what services they will reimburse.

Obtaining Licensure in Other States

Telemedicine physicians must be licensed at the originating site—where the patient is located. If physicians want to serve patients in another state, they usually have to obtain a full license in that state. This means carrying out all of the state's requirements, such as accumulating specific continuing medical education credits that may not be required in their home states.

In some states, however, there are easier ways to obtain licensure for telemedicine. Maryland, New York, and Virginia allow for reciprocity with bordering states, but only if the bordering state also provides reciprocity. And in Connecticut, out-of-state physicians can obtain an in-state license based on their home-state standards. Alabama and Pennsylvania grant licenses to out-of-state physicians from certain states that have agreements with them.

In addition, 29 states and Washington, DC, are members of the Interstate Medical Licensure Compact, which eases the licensing application process in sister states. These states include Illinois, Pennsylvania, Michigan, Arizona, Tennessee, Maryland, Colorado, and Wisconsin, but some member states still haven't reached final implementation of the pact.

Owing to the hassles of adding licenses in other states, physicians should think twice before extending telemedicine to patients outside of their state. This may not be possible, however, in multistate metropolitan areas, such as Washington, DC; New York City; Philadelphia; and Kansas City.

Requiring Informed Consent

Another major requirement in many states is that physicians must get the patient's informed consent—sometimes in writing—before initiating telemedicine. This is a special telemedicine consent process, beyond the normal consent process for treatment.

Altogether, 34 states plus the District of Columbia require some form of informed consent, according to a 2018 report by Mend, a telemedicine software company. Mend provides a state-by-state breakdown on informed consent policies.

In some cases, informed consent is limited to Medicaid or to a specific specialty. For example, 12 states require informed consent for Medicaid, and informed consent is required only for psychiatry in New York, New Jersey, and Pennsylvania, Mend reports.

However, the report lists 23 states and Washington, DC, that require informed consent for all patients, including California, Texas, Arizona, Maryland, and Connecticut. In 21 of these states, this means obtaining verbal informed consent, which then must be noted in the medical record.

However, in Colorado, Oklahoma, and the District of Columbia, this means obtaining written informed consent. (Texas requires written consent for Medicaid patients, according to the report.)

State Rules on Prescribing via Telemedicine

State rules of telemedicine prescribing are generally determined by licensing boards, and they are often so nuanced that state-by-state compilations by the CCHP and other sources don't even both bother to provide listings on prescribing.

In general, the CCHP states that many states require telemedicine prescribers to have a preexisting relationship with the patient, but some states allow an online questionnaire as a way to establish a relationship. Also, some states require a physical examination, but some of those states allow this to be an online physical exam, the CCHP adds.

States may waive the in-person exam in very specific circumstances. For example, the North Carolina board's exceptions include a "continuing medication on a short-term basis for a new patient prior to the patient's first appointment," and "where the threshold information to make an accurate diagnosis has been obtained," according to healthcare attorney Michael H. Cohen, healthcare attorney in Palo Alto, California.

The Virginia Board of Medicine is "a little looser," Cohen wrote. The board states that telemedicine prescribing should be done "at the professional discretion of the prescribing practitioner."

In California, the medical board "makes its position clear that it disfavors Internet prescribing," Cohen stated in another article. But that disfavor does not translate into a clear ban on telemedicine prescribing. For example, the board observes that some physicians use questionnaires to establish a relationship, and then merely explains why in-person examinations would be better.

The risks of being charged for violating prescribing restrictions are real. Most reported telemedicine malpractice cases involve physicians who prescribed medications across state lines without conducting in-office patient exams. Be sure to check with your state licensing board for rules in your area.

Prescribing Controlled Substances

In 2008, Congress passed legislation that memorialized Ryan Haight, a teenager who acquired prescription narcotics from an online website after filling out a questionnaire. The physician who wrote the prescription never saw him.

The Ryan Haight Act requires an in-person medical evaluation of the patient before a physician could prescribe narcotics online. Some states passed similar laws. More than a decade later, however, several states and the federal government reversed course as a result of the opioid crisis. Because lack of access to certain controlled drugs seemed to enable use of opioids, federal and state prohibitions have been loosened.

West Virginia recently passed a law explicitly allowing doctors to prescribe certain medication-assisted treatments through telehealth. And in 2018, Congress mandated a special registration process allowing physicians and nurse practitioners to prescribe controlled substances via telemedicine without an in-person exam.

The US Drug Enforcement Administration has been charged with formulating the process. As of yet, however, the necessary regulations have not been released.

The Complexity of Hospital Credentialing

When specialists at big hospitals arrange to conduct telemedicine visits at smaller hospitals, they have to be credentialed in those hospitals. This process is time-consuming and expensive, because the physician is essentially joining the hospital's medical staff.

There is a way to shorten this process, called "credentialing by proxy," which allows the physician's home facility credentialing process to be considered at the originating site facility. This requires a special agreement between the facilities and relies on timely reporting of a disciplinary action.

However, many hospital bylaws don't allow for credentialing by proxy, and the arrangement could violate laws in some states.

In summary, the credentialing requirement only applies to doctors who conduct telemedicine visits at another hospital. It is not necessary when physicians communicate directly with patients and do not use a hospital as the originating site.

Acknowledging Malpractice Risks for Physicians

In contrast to the tangle of state regulations, malpractice concerns in telemedicine are quite straightforward.

The risks of being sued for malpractice for a telemedicine visits are extremely low. One recent sampling of claims in New England did not find one claim involving this modality. There have, however, been some malpractice cases involving medications prescribed across state lines, as previously mentioned.

One reason for so few cases is that telemedicine encounters usually involve routine checkups and prescription refills rather than complex, high-risk procedures. But keep in mind that malpractice standards are based on face-to-face encounters, and telemedicine can never completely match what takes place in person. For example, the image of a skin irregularity may be distorted in transmission, even though these images have improved with better technology.

Risks rise when dealing with patients in other states, because they are able to sue under their own state's liability laws. Another state may have different statutes of limitations, standards of care, and damage caps than the physician's own state. In addition, three states—Hawaii, Colorado, and Texas— have a separate standard of care for telemedicine.

In some cases, malpractice insurers do not cover telemedicine lawsuits, so it's a good idea to check before you start offering telemedicine. Usually this can be resolved by buying a separate policy rider for telemedicine, which can be fairly inexpensive. Also, malpractice policies do not cover work done without a valid license—a problem doctors might stumble into when seeing patients in other states.

Malpractice litigation in telemedicine is virtually nonexistent right now. However, there will probably be more lawsuits as telemedicine increases, and the rulings will settle some legal questions.


You need to fully understand regulations for telemedicine before you can successfully use it. State regulations can limit the location of the service or the types of patients you can see, and require informed consent from the patient for telemedicine. In addition, many states limit or even bar online prescribing without an in-person visit.

In general, if you have telemedicine patients in another state, you'll need to be licensed in that state. Also, specialists wanting to provide telemedicine to patients in small hospitals have to be credentialed there, which can be an extensive process.

Having to deal with many regulations can be confusing, and some physicians hire a healthcare attorney to guide them through the process. However, it is possible to do this on your own by using references available on the Internet or by contacting sources.

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Neal Sikka, MD

| Disclosures | January 01, 2019

Authors and Disclosures


Neal Sikka, MD

Chief, Section of Innovative Practice and Telehealth; Associate Professor of Emergency Medicine, George Washington University School of Medicine & Health Sciences, Washington, DC

Disclosure: Neal Sikka, MD, has disclosed no relevant financial relationships.