As I mentioned in my post “How I got started in telepsychiatry,” I realized that I didn’t know much about telepsychiatry, so I asked the two questions most doctors ask these days when they find out something new in medicine:
- Does it work?
- Is it legal?
I wasn’t as concerned about the first question right away–after all, every doctor I know makes decisions based on telephone conversations with his or her patient–so I doubted that using Skype instead of a telephone was really going to get me in trouble as long as I checked to make sure that Skype met HIPAA standards. I decided to put the Skype question aside for a bit and go to the Maryland Board of Physicians website to find out whether they had anything on regulations relating to telepsychiatry. The website didn’t have a search feature, so I decided to I used the advanced search feature of Google, typed
telemedicine site:http://www.mbp.state.md.us/
in the search box, and got three results.
The first result, from 1999, was useful, and contained a half-page titled, “Internet prescribing does it meet the standard of care?” and subtitled “We don’t think so!” Basically, what the article said was that licensing boards across the US were becoming interested in telemedicine and that each board needed to decide exactly where medicine was being practiced when the physician is in one place and the patient is in another. According to the article, the Federation of State Medical Boards took the position that:
The practice of medicine occurs where the patient is. Thus, an out-of-state doctor using telemedicine to diagnose and treat a patient residing in Maryland would have to have a Maryland license or be acting as a consultant to a Maryland physician who has a bona fide doctor/patient relationship with the patient. Maryland physicians also should remember that if they practice medicine on patients elsewhere in cyberspace they are practicing in Maryland.
This made some sense to me because it that’s the way medical licensing works—doctors have to get licensed in every state they see patients. So, it looked to me that so long as both the patient and I were both in Maryland when the telepsychiatry session took place, I wasn’t breaking any laws so far.
The next paragraph in that first article brought up another interesting point:
And now another issue has presented. Web sites have sprung up which advertise the availability of prescription medications on-line. No prescription? No problem. For a fee, an on-line consultation is available. The patient fills out a questionnaire which asks a number of health related questions. The questionnaire is submitted to the medical consultant and if the patient is approved, the patient is then assessed a fee for the consultation (generally $75) and the desired medication is subsequently provided by mail. All one needs is a credit card and the “right” answers, and medication is speeding on its way to his or her home in a “plain naked mailer.”
The BPQA has serious concerns about this practice. Let’s say the patient wants a drug like Viagra. Is an on-line questionnaire about the patient’s past medical history really a medical consultation? Does a bona fide doctor/patient relationship exist when a person, previously unknown to the consultant, provides subjective answers to such questions as: “Do you have a heart disease?” Would a physician providing prescription medications to a patient based on a questionnaire be meeting the standard of care?
Well, I knew I wasn’t interested in slinging out prescriptions over the Internet, and I couldn’t really imagine doing telepsychiatry with anybody whom I hadn’t examined in person, so I was decided to find out about prescribing over the Internet on another day.
The second article that Google found was just an annual report from 2006 saying that the board was going to propose some regulations for telemedicine.
The third article had some proposed regulations, but I was unsure whether any of these regulations had actually been adopted. Basically, the regulations said:
- I was OK with a Maryland license as long as the patient and I were both in Maryland, and
- I had to disclose some things to the patient like my MD license number, and a few other routine items,
- That I had to do a real evaluation of the patient, but that doing an evaluation via telemedicine seemed legal,
- I had to get an informed consent form together, and
- I needed to keep the usual medical records and obey the usual laws.
However, I had no idea whether these regulations were in force, so I wrote an email to a person named in the third article, and asked whether these regulations were in effect or not.
So far, so good. It looked like telepsychiatry was probably legal in Maryland, but I still wasn’t sure. I was surprised that the Maryland Board of Physicians didn’t seem to have done much of anything since 2007.
{ 4 } Comments
I’m interested in understanding more about your conclusion that both patient and physician must be in the state of physician licensure. By my reading and according to most states medical boards, the location of the telemedicine service is defined only by the location of the patient. Therefore, the physician’s location is irrelevent so long as the the patient is physically inside the physician’s state licensure.
Thanks for blogging on this topic….obviously a growing industry. Care to add you name/practice to the Voyager Telepsychiatry Network?
Best,
Doug
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Douglas Ikelheimer, MD, MA
Voyager Telepsychiatry LLC
http://www.telepsychiatry.com
Doug,
Thanks for the comment. In answer to your question about the location of the telemedicine service being defined only by the location of the patient, the proposed COMAR Telemedicine 10.32.05.03 says:
So, parsing this section seems to be the key point. 03A say anyone who practices telemedicine from Maryland has to have a Maryland license. 03B seems to say that if a physician treats someone in Maryland by telemedicine, that physician has to have a Maryland license.
For Maryland at least, the proposed regulations indicate that a licensed psychiatrist in WV who happened to be visiting in MD couldn’t legally do a Skype session with a patient of his or hers back in WV. I’m not sure how this could be enforced.
The bigger question, which is on my queue of topics to blog about, is what to do about the very common clinical situation where, for example, I have a patient whom I’ve evaluated and followed in Maryland and who calls me in crisis from NY. Now, every clinician I know of would call NY, talk to the patient, and perhaps make some treatment change. I’ve never heard anyone say that this was illegal or improper, and it certainly seems like the appropriate thing to do for the patient. However, let’s say that NY has a law like you have mentioned–that medicine is being practiced where the patient is. If I call my patient, and tell her to change her neuroleptic dose slightly, have I broken NY law? Putting telepsychiatry aside for a moment, is it even legal to have this kind of telephone contact? If it’s legal to do it over the telephone, how could it be illegal if I used Skype rather than my cell phone?
The regulations that you quote above indicate “one or both” i.e. either the physician is in Maryland, the patient is in Maryland, or both. By my reading, this is consistent with the position that physician location is irrelevant so long as he/she is licensed wherever the patient is at the time of the contact.
But in fact the regulations are poorly worded because if only one of those is true (physician in Maryland) and patient is in another state, then you cannot treat that patient unless they are an already established patient inside the limits of your licensure (see below).
Regarding your other question, if you have an established patient based in Maryland, and the patient has a crisis while traveling in another state, my view is that there is no problem accessing and treating that patient while they are out of state. You are not practicing medicine outside your state lines so long as the patient remains established in Maryland (my view).
Doug,
I agree with you that it’s hard to understand exactly what these regulation mean and I hope that they get clarified in the future. I’ll still give some credit though to the Maryland Board of Physicians for at least starting to put out some guidelines for people like us.
I appreciate your time in helping me think through all of this and I’ve placed your site on my blogroll.
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