New Telemedicine Policy Pleases Some, Others Have Issues

Ken Terry

April 29, 2014

The Federation of State Medical Boards (FSMB) on April 26 adopted a "model policy on the appropriate use of telemedicine technology in the practice of medicine" at its annual meeting in Denver, but not everyone is entirely happy with it.

While the new policy is not binding on the federation's member boards, the FSMB said in a statement that the document "provides much-needed guidance and a basic roadmap that state boards can use to ensure that patients are protected from harm in a fast-changing health-care delivery environment."

The model policy states that the same standards of care should be applied to in-person patient encounters and to care that is delivered electronically. In addition, providers should establish a credible patient-physician relationship in telemedicine consultations and should "adhere to well-established principles guiding privacy and security of personal health information, informed consent, safe prescribing and other key areas of medical practice," according to the news release.

Initial reaction from leading telehealth firms was mostly positive. American Well CEO Roy Schoenberg, MD, said in a press release, "This policy is a bold step towards a reality where all patients can access quality care irrespective of time, place and location." And MDLive CEO Randy Parker told Medscape Medical News that standardizing telemedicine regulations across states "is very positive and required for the ability of companies like MDLive to connect and provide services."

Not Everyone Happy

Nevertheless, the American Telemedicine Association (ATA) criticized several specific areas of the policy in a letter it sent to the FSMB prior to the vote. For example, the policy states that physicians who practice telemedicine must be licensed in the same state where the patient they treat remotely is located. The ATA argues that this provision would, in effect, prohibit reciprocal licensing agreements between states. In an interview with Medscape Medical News, ATA CEO Jonathan Linkous said, "This could actually be a step backwards."

Dr. Humayun J. Chaudhry, president and CEO of FSMB, told Medscape Medical News that state medical boards have always insisted on licensing all doctors who practice medicine in their states, partly because that's the only way they can discipline them. But FSMB is well on its way to developing an "interstate medical licensure compact" that would address the issue of reciprocity, he said.

This compact, which he said has "significant support among our state medical boards," would allow physicians to complete a single licensing application for all participating states that would enable them to practice in any of those jurisdictions. That would cover their right to do telemedicine, as well, he noted.

The ATA also objects to the model policy's definition of telemedicine as "the application of secure videoconferencing or store and forward technology to provide or support healthcare delivery by replicating the interaction of a traditional encounter in person between a provider and a patient." The industry group notes that this provision, which also says that telephone consults, emails, texts, and faxes cannot be the basis of telemedicine, runs counter to modes of patient-doctor communication that have been embraced by some healthcare providers.

Requiring video as part of a remote encounter would limit access to telemedicine services, Parker noted. People with lower incomes may not be able to afford devices that have video capability, but they could still benefit from telephone or email encounters with providers, he said. So "all of the currently available technology should be used," he said.

Chaudhry said that this aspect of the model policy is actually just an observation, not a definition of the technology that the FSMB approves.

"If [telemedicine] technologies are able to maintain a standard of practice that is equivalent to what goes on in in-person encounters and providers are able to look out for patient safety, that's what's critical, and that's what this document is talking about," he said. "It's not designed to exclude communications, including by email and phones, that physicians and patients have all the time."

In other words, he said, if the circumstances required the doctor to visually examine the patient, video conferencing might be indicated, but it might not be necessary in other cases. Moreover, he said, there's nothing in the policy that prohibits the use of "video chat" features on smartphones and tablets.

Standard of Care?

Linkous and Parker both welcomed the FSMB's effort to standardize telemedicine policies across state medical boards and to ensure that the standard of care is the same in both in-person and remote consultations. But Linkous observed that in some areas the model policy would raise the bar higher for telemedicine than for in-office encounters. For example, the informed consent provision includes requirements that are not applied to face-to-face visits.

The policy also holds that patients should have a choice of physicians, "where appropriate," rather than being randomly assigned to on-call doctors. While some telemedicine services already allow patients to choose among the physicians on their roster — whether an in-house group or local doctors — the ATA notes that this requirement is not currently applied in emergency rooms (ERs) or urgent-care centers.

Similarly, ER and urgent-care physicians may not have access to patients' prior records when they treat them. But the FSMB policy maintains that, to protect patient safety, online physicians should obtain "a documented medical evaluation and collection of relevant clinical history" prior to treating or prescribing to a patient. Moreover, the document says, "Treatment, including issuing a prescription based solely on an online questionnaire, does not constitute an acceptable standard of care."

Chaudhry agreed that in the real world, treating physicians don't always have access to a patient's records. However, he said, the FSMB policy emphasizes that "when they can be available, you should consider them." And if the records aren't there, doctors should obviously ask relevant questions such as what the patient's allergies are.

Overall, he noted, "when you're not explicit about every kind of encounter, there will be some ambiguity [in the policy]. It's not intentional, but ultimately it's up to the states to decide what they want to do."

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