Did COVID Relax Telemedicine Laws?
In today’s video, we discuss whether COVID relaxed telemedicine laws.
I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We help healthcare industry clients just like you navigate complex healthcare and FDA legal issues so you can launch, or continue to scale, your health and wellness product or service.
Broadly speaking, a number of states did relax the requirement that physicians treating patients in their state be licensed in that state.
For example, before COVID, Virginia’s Medical Board required that the physician to be licensed both in their home state and in the state where the patient is located, presumably in this example in Virginia.
During COVID, Virginia relaxed this requirement, but only if the physician would be engaged by a local hospital, licensed nursing facility, or dialysis facility for the purpose of assisting that facility with public health and medical disaster response operations. So, this was basically a very narrow, targeted exception to facilitate COVID care.
Virginia also allowed treatment where the physician had a pre-existing relationship with the patient.
Remember that there are really two big threshold issues in telemedicine: first, does the medical doctor, psychologist, or other licensed healthcare provider need to be licensed in the patient’s state; and second, even if licensed, do they have to provide a good faith initial exam?
And under that second question, does that initial exam have to be in-person or can it be done by audio-visual means—a.k.a, digitally, over the Internet via a laptop, tablet or mobile phone or some other device? And what is required before that audio-visual encounter is sufficient… for example, many states require that the healthcare practitioner be able to ensure that the patient is who they say they are.
There is a third, hidden issue at play, and that is the standard of care. I say hidden because the healthcare provider always has to meet the standard of care even if licensure issues are satisfied, but the law allows a digital only first encounter, and the first meeting is digital.
In at least one recent case in California, the medical doctor providing telemedicine ran into trouble because, the medical board said, he did not meet the standard of care when prescribing drugs for patient’s sexual dysfunction, without first offering an in-person exam.
In this disciplinary action, the patient presented with ED.
The Medical Board of California using 20-20 hindsight said: it would have expected the physician to take a detailed medical history, “including urological, neurological, cardiorespiratory, and psychological elements,” which should include determining the etiology of the ED and contraindications to recommended medication.
The Board also required not only taking of vital signs but also a genital examination; and a “detailed sexual and social history” to screen out for various mental health issues and social issues and other aspects of the patient’s condition.
So, as you can see, standard of care is hidden, but it can come back and bite the practitioner. Whether medical boards will extend this line of attack against telehealth companies remains to be seen, because after all standard of care is an obligation by the practitioner.
But, there are always byways in the law and if there is a line of attack available to medical boards, it is possible that it could be available to private plaintiffs to try to exploit it as a predicate for some other theory of liability, such as for example, unfair business competition.
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