In today’s video, we’ll return to whether a good faith exam is required of a telemedicine practice or telehealth startup, and we’ll look at the requirement that the clinical practice establish a valid patient relationship.

Hi, I’m Michael H. Cohen, founding attorney of Cohen Healthcare Law Group. We help healthcare industry clients just like you, navigate the healthcare legal and regulatory terrain so you can launch, grow, or scale your healthcare business or venture.

How does a telehealth practice or app establish a valid physician-patient relationship?

This sounds like that old joke, what do you get when you cross a hippopotamus with a rhino? “The hellifino!”

Actually, we do know, because we spend a lot of time researching the telehealth laws and regulations of various States, so we can advise our telemedicine clients.  And everyone’s doing telemedicine, it’s no longer novel, but it is subject to an awesome patchwork of arcane rules across States.

The simplest and easiest way to establish a physician-patient relationship is for the physician to see the patient in person.

This isn’t always practical, though.  Let’s say you’re a physician with licenses in California and Montana, but you don’t want to fly to Montana simply because you get a new patient there.  Or let’s say you’re a telehealth platform and your physicians, psychologists or other clinicians work entirely remotely. So, you can’t really see them in person.

Fortunately, the more modern State telehealth statutes give you some options, Let’s look at Delaware as an example.  Title 24, Section 1782D defines “licensed mental health professional” as a licensed psychiatrist, psychologist, or licensed professional counselor of mental health.  It is unusual in that they lump the MD psychiatrist with the other mental healthcare professionals.

Then, in a roundabout definition, the Statute says that “the practice of psychology may be provided through the use of telemedicine in a manner deemed appropriate by regulation. Services also may include participation in telehealth as further defined in regulation….”

OK, let’s read on.

“Telemedicine” means …. I won’t read that one, by now it’s pretty obvious that you have telehealth at a distance, and it can include a lot of different services—Delaware even wraps in patient education, public health, and health administration. So, it’s intending to be very broad and permissive.

Now, the part that’s relevant for our question. Delaware requires that the physician-patient relationship be “established” and, says that can be done either in-person or via telehealth.  There are a whole bunch of requirements, including: (1) identifying the patient and verifying their location; (2) disclosing the provider’s credentials; (3) obtaining appropriate consents; (4) making a diagnosis in accordance with accepted medical standards, (5) discussing risks and benefits with the patients; (6) ensuring follow-up care; and (7) providing the patient with a written visit summary.

This was written a few years back that’s why it sounds more extensive than you might expect.  But if you’ve ever received an email from your doctor with a written after-visit summary after a telemedicine encounter, you’ll understand this documentation is part of satisfying that part of the rule.

One time, me being me, I consulted a therapist on a software platform and they asked where I was dropping in from, by video chat.  Glibly, I replied, “I’m at a Starbucks.”

You see, I have this persona as a careful telehealth lawyer and then I have this persona, a regular human being and I was the client.  My therapist reminded me that she had a written obligation to validate my location, and, “a Starbucks” just wasn’t cutting it.

Some people are sticklers for complying with the rules.

If you’re ever under scrutiny for your telehealth business, it’s good to know the rules, and be backed by legal review that focuses on risks as well as the costs for your business for complying.  So, establishing the physician-patient relationship in Delaware requires audiovisual communication, not just audio, and it’s got to be real, two-way live conversations. So, that’s the quirkiness of Delaware.

Thanks for watching. Please contact us with your questions. We have a lot of telemedicine experience; we have helped a lot of healthcare ventures just like you grow and scale, and we look forward to helping you on your journey to success!