Veterinary Telemedicine Legal Issues Similar to Human Telemedicine

Pet Telehealth Laws Mirroring HumanAre pets like humans under telemedicine laws and regulations? As telehealth laws continue to expand to accommodate telemedicine practices, more and more practitioners are jumping on the telehealth bandwagon.

Our telehealth lawyers recently advised a veterinarian seeking to create a telemedicine or tele-radiology / tele-imaging (tele-ultrasound) service for pets. Our DVM client asked what were the laws and regulations governing remote treatment of pets–were they similar to telemedicine rules for human patients?

In human telemedicine, although telehealth laws vary by state, there are several common regulatory threads:

  • The standard of care is at least as great as in regular medical care. Telemedicine does not permit an easier standard of care.
  • Standards for record-keeping are the same as in regular medical care.
  • As a corollary, telemedicine might be particularly appropriate for medical specialties such as dermatology, where image resolution via telehealth can be greater than during an in-person exam, arguably allowing superior care. Or, for example, telepsychiatry, tele-psychology, and other forms of online mental healthcare. Telemedicine might be more challenging for geriatrics, family medicine, or oncology – unless in a consultative situation.
  • The physician performing the telehealth encounter must give informed consent that notifies the patient of any risks and benefits particular to telehealth in the given situation.
  • While many telemedicine companies allow physicians to prescribe prescription refills, normally state laws prohibit prescribing via an online encounter, without first having had an in-person, good faith (appropriate) exam.
    • In many states, the exam must simply be “appropriate” but the statute does not specify whether it must be in-person.
    • In some states, that the exam must be in-person prior to prescribing, is either a medical board regulation or informal rule or enforcement position.
    • Some states make it illegal to prescribe based only on a questionnaire received from the patient.
  • The physician must be licensed in both his or her home state, and in the remote state where the patient is located. Many states provide an exception that allows the physician to consult with the remote state doctor, so long as the home state physician does not open an office in the remote state.

These ground-rules are followed in some of the states that have begun to regulate veterinary telemedicine. In other words, on the licensure front, the D.V.M. veterinarian in the home state has three choices with respect to the pet owner who resides in the remote state:

  • Get licensed in the Remote State where the pet and pet owner live.
  • Establish a veterinarian – pet relationship with the pet that lives with its owner in the Remote State.
  • Establish a consultative relationship with the veterinarian in the Remote State.

Another model is to take advantage of the consultation exception to telemedicine, while also getting the pet owner to send their records to the home state veterinarian, thus creating a triangular relationship between the two vets that also involves the pet owner. We explored this clever model in our post on the Cleveland Clinic’s “second opinion” telemedicine service.

At least one online tele-veterinary service we reviewed hands a disclaimer to attempt to handle these legal concerns. A prominent disclaimer in the terms of use for the telehealth veterinary site says that the veterinary specialists render services to the “primary care veterinarian and pet owner” so they can make informed care decisions for the pet.

Cleverly, the disclaimer in the tele-veterinary site terms of use also states that if the vet does not see the pet “in person,” so to speak, then the telehealth services must be considered educational and not clinical.

Expect to see providers of veterinary ultrasound and imaging equipment to be offering veterinary telehealth pet services as part of the sale of diagnostic equipment. Here, too, the lines are blurred between what is “education” and what is a clinical service.

Our telemedicine attorneys typically advise clients on the line between educational services, which are considered protected by the First Amendment as speech, and clinical (medical, veterinary) services which are governed by licensing laws.

Note that in some states, there may be separate rules that address the question of telemedicine consults regarding imaging. For example, Florida law includes:

(9)(a) Nothing contained in this rule shall prohibit consultations between physicians or the transmission and review of digital images, pathology specimens, test results, or other medical data by physicians or other qualified providers related to the care of Florida patients.

64B8-9.0141 Standards for Telemedicine Practice.

California regulates veterinary telemedicine as it typically is in the forefront of regulating healthcare developments:

  • In California, 16 California Code of Regulations 2032.1 (“Veterinarian-Client-Patient Relationship”) states that it is “unprofessional conduct for a veterinarian to administer, prescribe, dispense or furnish a drug, medicine, appliance, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture or bodily injury or disease of an animal without having first established a veterinarian-client-patient relationship with the animal patient or patients and the client, except where the patient is a wild animal or the owner is unknown.”
  • 16 California Code of Regulations 2032.25 (“Written Prescription in Absence of Originally Prescribing Veterinarian”) states: “(a) Prescribing, dispensing, or furnishing dangerous drugs as defined in Section 2022 of the Business and Professions Code without an appropriate prior examination and a medical indication, constitutes unprofessional conduct.” There are several exceptions, such as:
    • The veterinarian was serving in the absence of the treating veterinarian and the drugs were prescribed, dispensed, or furnished only as necessary to maintain the animal patient until the return of the treating veterinarian, and for less than 72 hours;
    • The veterinarian transmitted the order for the drugs to another vet or registered vet tech and: (a) the two consulted, with review of the animal patient’s records; and (b) the vet reviewed the animal patient’s records, and ordered the renewal of a medically indicated prescription for an amount not exceeding the original prescription in strength or amount or for more than one refill.
  • The Telehealth Sub-Committee recommended to the California Department of Consumer Affairs that it amend Section 2032.1 Veterinary-Client Patient Relationship to more carefully define what the veterinarian must do to “establish” a VCPR (veterinarian client patient relationship); subsection (e) states that a veterinarian-client-patient relationship “cannot be established solely by telephonic or electronic means.”

Our healthcare lawyers track telemedicine legal developments so we can counsel our clients on their telehealth compliance legal obligations. Contact our telemedicine legal team for laws and updates relevant to your situation.

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Michael H Cohen Healthcare & FDA Lawyers

Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.

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