Federation of State Medical Boards Adopts Model Policy Guidelines for Telemedicine

On April 26, 2014, the Federation of State Medical Boards (FSMB), representing 70 states and territories, approved updated guidelines that constitute a model policy for the safe practice of medicine with telemedicine technology. FSMB conducted an extensive review of current telemedicine technologies and existing standards of care promulgated by state medical boards to generate the guidelines. FSMB’s goal in developing the model policy was to promote widespread adoption of telemedicine technology by providing state legislatures and medical boards with a tool to remove regulatory barriers to the use of the technology, while still protecting public health and safety through consistent standards of care.

The model policy is only advisory. An individual state medical board may adopt the model policy, modify it or retain its existing telemedicine standards. It remains to be seen how many states will adopt the model policy in its proposed form or incorporate elements of the model policy into existing laws, regulations and/or guidance. However, the model policy was not adopted without industry scrutiny, as the American Telemedicine Association (ATA) responded to a draft of the model policy with a series of proposed amendments.

A summary of the most significant elements of the model policy follows:

1. Physician-Patient Relationship: Under the model policy, a physician practicing via telemedicine technology must maintain a proper physician-patient relationship. When rendering medical advice via telemedicine technologies, a physician should: (1) verify and authenticate the patient’s location and identity, (2) disclose and validate the provider’s identity and credentials, and (3) obtain appropriate consents regarding the delivery model and treatment methods. An inappropriate relationship may exist if the identity of the physician is unknown to the patient. Furthermore, according to the model policy, a patient should be able to choose a physician for telemedicine services rather than be randomly assigned to one.
2. Definition of Telemedicine: The model policy defines telemedicine as “the practice of medicine using electronic communications, information technology or other means” between a physician in one location and a patient in another location. The definition further provides that, as a general matter, a communication that is audio-only – such as a conversation by telephone, fax, email or instant message – is not considered telemedicine. Instead, telemedicine typically involves secure videoconferencing or store-and-forward technology that replicates the traditional physician-patient interaction.
3. Licensure: The model policy provides that a physician must be licensed by the state medical board in the jurisdiction in which the patient is located at the time the services are provided. Further, the “practice of medicine” occurs at the patient’s location, not in the state where the physician is located. The ATA noted in its comments that adoption of this provision may prove burdensome for state medical boards entering into reciprocity agreements, and for military physicians servicing personnel around the world.
4. Prescriptions: The model policy holds prescriptions issued via electronic means to the same standards as those issued in traditional patient-encounter situations. Thus, physicians practicing medicine via telemedicine technology may not circumvent face-to-face requirements or other state law requirements by relying solely upon online questionnaires completed by patients.
5. Informed Consent: The model policy provides very prescriptive terms for appropriate informed consent regarding the use of telemedicine technologies. The ATA noted that these terms create an extensive informed-consent requirement that currently does not exist when a patient sees a physician in an office setting, and that a majority of state medical boards do not have any informed consent requirements. However, the ATA acknowledged that patients should be properly educated about the use and limitations of telemedicine technologies.

If you have any questions about the model policy or existing telemedicine laws, regulations and guidelines in your state, please do not hesitate to contact one of the authors.