Although of uncertain legality in many states, the article points out that prescribing without a face-to-face evaluation appears to be explicitly legal in:

• New York,
• California,
• Texas, and
• Maryland,

and explicitly illegal in:

• Florida and
• New Jersey.

Clearly, the Federation of State Medical Boards should probably help the states get together on this issue because of the inconsistency.

I assume that the intent of the state boards is to try to make it clear that prescribing for patients with only a minimal “evaluation” is outside the standard of care. (Think filling out a five question true-false questionnaire as an “evaluation” for getting Viagra.)

It seems to me that rather than getting involved with whether face-to-face evaluations somehow magically trump Skype-based ones, the real issue here is whether anything close to a real evaluation is being done, not the medium of communication. I find it hard to believe that any questionnaire with five questions constitutes an evaluation. I also find it hard to believe that if I were to spend 90 minutes talking to someone on Skype that I haven’t done a reasonable evaluation.

In this post and this post I’ve talked about how telepsychiatry may not be ideal in certain situations, but I would also add that many face-to-face evaluations aren’t ideal either, but, so far as I know, few would be willing to argue that this means the standard of care is being violated.

There are sometimes language barriers or communication issues due to the patient’s illness. Sometimes patients aren’t totally candid, I’m not able to build good rapport, or they show up for their first evaluation so late that we have time for a “hello,” a very directed evaluation for safety, and a “goodbye,” before scheduling another visit to finish what we should have gotten done on the first visit.

Circumstances in psychiatry, and in medicine in general, are seldom ideal for evaluation. In my mind, at least, the questions that I ask myself are:

• Did I get as much useful information as I could, given the time available?, and
• Did I recognize what information I didn’t get?

I would argue that these are the key clinical questions to answer before prescribing for someone, not whether the evaluation took place face-to-face or over the Internet.

By the way, this article made me think about my own policy of not doing an initial evaluation over the Internet. Right now, the only issue that I can think of, other than my own uncomfortableness with the idea, is that the Maryland Board of Physicians proposed guidelines say that I somehow have to make sure of the identity of the person I’m prescribing for. I understand that the guidelines are trying to help prevent fraud, but is the situation that much different than when someone comes to my office? I certainly don’t ask to see everyone’s driver’s license before I give them a prescription for the first time. Is this something that I am supposed to be doing? Does anyone know a simple way for me to meet the MD Board of Physicians requirements?

I was really pleased to get a reply in less than 24 hours. In it, she said that a proposal had been by the Board of Physicians in August, 2009, and that something like this proposal was likely to be adopted by the end of 2009.

Basically, my read on the proposed regulations was that

• Both the patient and I needed to be in Maryland,
• I needed to put some more information on my website, including my MD license number and status  (I already have a HIPAA form there),
• That I was going to need to write an informed consent form, and
• I needed to keep the usual medical records.

I could also see that even doing an evaluation over the Internet was probably legal, but I decided that I wasn’t going to do that initially.

I just wish that all my interactions with people who worked for the State of Maryland were as good as my experience with Michele Phinney. She rocks!

• 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.