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Since the start of the global coronavirus pandemic, more Americans than ever before are taking advantage of telemedicine. In California, telehealth is nothing new. The use of the phone, videoconferencing, and other technologies to see patients have been permitted for more than 25 years.
The regulations surrounding telemedicine in California are complex and have changed significantly over the years. While telemedicine is an incredibly important tool, it can also be a minefield for the unwary. If you are using telemedicine, whether during the pandemic or at any other time, it is critically important to understand the laws governing it.
A violation of telemedicine regulations can lead to significant consequences, including disciplinary action and even the suspension or revocation of your license. If you are under investigation for an alleged telehealth violation, a knowledgeable San Diego healthcare license defense attorney can help.
California was the first state to regulate the provision of telemedicine, through the Telemedicine Development Act of 1996. This law was enacted to ensure access to care for all Californians. Among other things, the law required patients to sign a consent form before telemedicine services could be provided.
15 years later, the Telehealth Advancement Act of 2011 was signed into law. This law made several changes to existing telemedicine law, including:
In 2013, Assembly Bill 1733 authorized $200 million for telemedicine education programs. It also provided that private insurers cannot require an initial face-to-face visit before telemedicine can be used, and cannot limit reimbursement if patient-site visits were not used.
In 2015, Assembly Bill 809 removed the requirement for written patient consent. Properly documented verbal and written consents were deemed sufficient under this law. In 2019, the law was amended to remove the requirement for an in-person examination prior to prescribing controlled substances.
Most recently, Governor Gavin Newsom issued an executive order during the COVID-19 pandemic to relax state privacy and security laws for medical providers. While healthcare providers are still required to implement reasonable safeguards to protect patient information against impermissible uses and disclosures, strict compliance may hinder the provision of medical services during the pandemic.
California defines telehealth as the “mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care.” Telehealth is the broad term that includes telemedicine. It encompasses technologies such as:
All professionals licensed under Section 2 of the California Business and Professions Code, Healing Arts, are able to provide care to patients via telemedicine. This includes, but is not limited to, physicians, chiropractors, dentists, nurses, speech pathologists, occupational therapists, and registered dieticians. Any patient in California who has provided informed consent to receive telemedicine services is eligible to receive this type of care.
According to the Medical Board of California (MBC), the standard of care for licensees is the same whether the person is seen at a healthcare facility, through telehealth, or through another method authorized by law. Licensees who provide telehealth technologies to patients in California must be licensed in California, although they need not reside in the state. All rules related to informed consent, ensuring the privacy of medical information and other standards must be adhered to, regardless of whether the patient is seen in person or via telehealth.
A doctor-patient relationship can be established through telemedicine, without an initial in-person visit. Under Business and Professions Code Section 2242 California law forbids prescribing dangerous drugs “without an appropriate prior examination and a medical indication.”
Importantly, this law does not necessarily require that the prior examination happens in person. Under a 2019 Amendment to the Business and Professions Code, an appropriate prior examination can involve telehealth, provided that the licensee complies with the appropriate standard of care. If a licensee does not perform an “appropriate prior examination” — whether it occurs in-person or via telemedicine — and does not meet the standard of care, then it may be subject to disciplinary action for unprofessional conduct.
Under California’s Health & Safety Code, private payers must reimburse healthcare providers for telemedicine at the same rate that they would for in-person visits. However, this rule only applies to synchronous videoconferencing, not to other forms of telemedicine. Medi-Cal only reimburses providers for synchronous videoconferencing, while the Medicare rules regarding reimbursement for telemedicine are more complex.
The rules and regulations surrounding the provision of telemedicine services are complex. Doctors, surgeons, and other healthcare providers may find themselves the subject of disciplinary action for any violation of these laws.
One example includes, if a medical practice fails to take steps to protect patient privacy while utilizing telemedicine services, the responsible physicians may face civil penalties as well as disciplinary action (notwithstanding the 2020 executive order that relaxes certain standards). To ensure compliance with laws governing patient privacy and confidentiality of medical records, doctors, hospitals and medical practices should (at a minimum) put reasonable safeguards in place to ensure that patient information is not inadvertently or intentionally disclosed.
Beyond privacy concerns, two common issues that often arise in telemedicine involve prescribing medication and the unauthorized practice of medicine. First, physicians who prescribe controlled substances through telehealth visits should be careful to ensure that an “appropriate prior examination” has occurred. While this exam does not have to be in-person, it should be sufficient to meet the standard of care for the issue in question.
Second, telemedicine may raise questions of unauthorized practice of medicine, or aiding and abetting in the same. Only individuals who are licensed to provide telehealth services under California law should be given access to telemedicine portals. In addition, online forms (such as questionnaires) should be used with care to avoid an allegation that a licensee made a diagnosis or prescribed medication without an appropriate examination.
In every telemedicine visit, it is vital that a doctor, surgeon, or other medical provider meet the same standard of care that they would if they were seeing the patient at their office. Failure to do so may result in a complaint of negligent quality of care and may result in disciplinary action before the Board.
If there is any question about how telehealth services can legally be provided or the limits on diagnosis and treatment, healthcare providers should consult with an attorney. If the Board has reached out regarding the provision of telemedicine services or has requested an interview, contact an experienced California healthcare license defense lawyer as soon as possible to protect your license and livelihood.
The practice of medicine and other forms of healthcare is heavily regulated by the state of California. This includes using telemedicine to see patients, make a diagnosis, or prescribe medicine. If you are under investigation for your use of telemedicine, your license may be at risk.
At the Law Office of Nicole Irmer, we utilize our knowledge of the law to advocate for each of our clients. In each case, we develop a comprehensive strategy to help our clients achieve the best possible outcome. To learn more or to schedule a consultation, call us at 619-237-6130 or reach out online.