On April 26, the Federation of State Medical Boards
("FSMB") adopted a model telemedicine policy, offering a
framework for regulators and health care professionals to consider
as utilization of telehealth technologies between providers and
patients continues to grow. The nonbinding policy statement will
likely spur action by state legislatures and medical boards eager
to establish or revise standards for this emerging sector of health
care.
During FSMB's annual meeting in late April, delegates
representing medical licensing boards from across the United States
approved the Model Policy for the Appropriate Use of Telemedicine
Technologies in the Practice of Medicine ("model
policy"). 1 The Model Policy outlines a
"direct-to-consumer" approach to telemedicine and sets
forth requirements for the establishment of a
physician–patient relationship and protocols for continuity
of care. Prior to this new roadmap, an FSMB policy statement on
internet use in medical practice 2 served as a guide on
a range of topics, including digital health and electronic
prescribing, but otherwise there was little consensus among
regulators to promote common standards for telehealth. In recent
years, state medical boards adopted varying regulations and
guidance affecting telehealth in the delivery of medical care.
According to the American Telemedicine Association
("ATA"), despite having guidelines from industry and
strong public support for telemedicine, some medical boards
"developed medical practice standards that effectively hinder
the use of such services within the state." 3
Recognizing the need to update existing policy guidelines to
comport with current and accommodate future developments in
telehealth, the state medical board delegates responded by
proposing a more deliberate and uniform approach to telemedicine
embodied in the new model policy.
Given the FSMB's stated goal of offering this model policy to
help "remove regulatory barriers to widespread appropriate
adoption of telemedicine technologies for delivering care while
ensuring the public health and safety," it appears the new
model policy sets the stage for state regulators to consistently
consider and apply the use of telemedicine technologies within
their states and across borders. 4 Thoughtful and
consistent regulatory oversight is increasingly important for the
telehealth industry, which some analysts have predicted will
approach growth rates of 600 percent over the next few years.
5
At its core, the model policy aims to "provide flexibility in
the use of technology by physicians—ranging from telephone
and email interactions to videoconferencing—as long as they
adhere to widely recognized standards of patient care."
6 The framework comprises several key components:
Defining "Telemedicine" for a Specific Use
Case
The model policy proposes a specific description for
"telemedicine": "the practice of medicine using
electronic communications, information technology or other means
between a licensee in one location, and a patient in another
location with or without an intervening healthcare provider."
7 This language reflects the model of direct-to-consumer
telehealth, rather than specialty consults between two or more
physicians. In fact, the document specifically states that
"this policy does not apply to the use of telemedicine when
solely providing consulting services to another physician who
maintains the physician–patient relationship with the
patient, the subject of the consult." 8
Confirming the Importance of Physician–patient
Relationship Consistent with Traditional Constructs
As with traditional constructs around the physician–patient
relationship, the new policy (i) confirms that a relationship can
be established solely in connection with a telemedicine encounter
when a physician agrees to undertake diagnosis and treatment of a
patient and the patient agrees to be so treated, and (ii)
identifies certain steps that telehealth providers are encouraged
to use for appropriate development of the physician–patient
relationship, including verification of patient location,
disclosure of physician's identity and credentials, and
gathering any necessary consents.
Equating Standard of Care for Direct-to-Consumer Telehealth
to That of Traditional In-Person Standards
Rather than establishing a different standard of care for a
telehealth encounter (the direction some state regulations have
taken over the last few years), the model policy clearly mandates
that diagnosis or treatment using telemedicine should be held to
the same standards of appropriate practice as those in traditional
("in-person") settings. As such, consistent with
traditional norms for the diagnosis and treatment of patients, a
health care provider should conduct a medical evaluation of a
patient, including collecting relevant clinical history, and
determine whether, in each case, a diagnosis or treatment is
possible or recommended based on the presentation of the patient
and the facts and circumstances presented.
Making Available Provisions for Continuity of Care and
Referral for Emergency Services
Here again, consistent with traditional notions of a
physician–patient relationship, the model policy highlights
the need for telehealth providers to make appropriate provisions
for patients to obtain, as needed, follow-up care or information
following a telemedicine encounter. In particular, the new policy
allows for the continuation of care through a variety of
technologies, including telephone calls, if the
physician–patient relationship was properly established and
the standard of care is met. Further, as some patients' needs
may require treatment by an emergency department or acute care
facility, the model policy requires telehealth providers to
establish an emergency plan for directing referrals in emergency
situations.
With the establishment of this FSMB model policy, state medical
boards may reexamine current regulations and guidance relevant to
telemedicine for potential modifications or updates. Further, the
policy statement encourages providers utilizing telehealth to
review their practices and confirm they are appropriately
establishing the physician–patient relationship, informing
patients on the details of delivering care via telehealth, and
making arrangements for continuity of care. In evaluating whether
they are meeting the standard of care, providers may also find it
useful to consult industry guidelines developed to identify
appropriate practices for the delivery of care using telemedicine
technologies. Relevant guidelines and practice standards of the ATA
and others may be helpful resources. 9
Jones Day partner Alexis Gilroy served as a subject matter
expert for the FSMB's State Medical Boards' Appropriate
Regulation of Telemedicine (SMART) Workgroup, which developed the
new model policy on telemedicine.
Footnotes
1 Fed'n State Med. Bds., Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine (2014), available at http://www.fsmb.org/pdf/FSMB_Telemedicine_Policy.pdf.
2 Fed'n State Med. Bds., Model Guidelines for the Appropriate Use of the Internet in Medical Practice (2002), available at http://www.fsmb.org/pdf/2002_grpol_Use_of_Internet.pdf.
3 Press Release, Am. Telemedicine Ass'n, "ATA Submits Comments on FSMB's Proposed Regulations for Telemedicine" (Apr. 22, 2014). The ATA submitted comments mostly in support of the FSMB's model policy. See Am. Telemedicine Ass'n, Proposed Changes to the Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine (Apr. 21, 2014), available at http://www.americantelemed.org/docs/default-source/policy/click-here.pdf?sfvrsn=0.
4 Model Policy, supra note 1, at 1.
5 Ken Terry, "Telehealth to Grow Six-Fold by 2017," Information Week (Jan. 23, 2013, 3:54 PM), http://www.informationweek.com/mobile/telehealth-to-grow-six-fold-by-2017/d/d-id/1108328?.
6 Press Release, Fed'n State Med. Bds., "State Medical Boards Adopt Policy Guidelines for Safe Practice of Telemedicine" (Apr. 26, 2014), http://www.fsmb.org/pdf/FSMB_NR_Telemedicine_Policy042614.pdf.
7 Model Policy, supra note 1, at 1.
8 Id. at 1 n.2.
9 See Am. Telemedicine Ass'n, Standards & Guidelines, http://www.americantelemed.org/resources/standards/ata-standards-guidelines.
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