The use of telehealth has grown rapidly and emerged as a popular and effective option that many medical providers are embracing. The telehealth environment presents many benefits, but there are also challenges and risks that medical providers need to be aware of and manage.
That’s why we developed Copic Insight: Navigating the Medical Liability Aspects of Telehealth, a resource booklet to help address questions and concerns around using telehealth in your medical practice. It provides information on areas such as coverage considerations, legal/regulatory issues, risk management guidelines, and cyber risk. Here are some of the key takeaways from the booklet:
What legal/regulatory issues apply to telehealth when the patient is located in a different state than the treating provider?
- The jurisdiction of telemedicine is where the patient is located at the time of treatment, unless it meets the exception for continuity of care for existing patients established in the state of your licensure.
- You might be subject to laws and conditions of the state where the patient is located, even with an existing patient exclusion. Hence, we strongly advise against providing reproductive healthcare, medical terminations, gender affirming therapy, and other issues, as legislative landscapes are ever-evolving and vary widely from state to state.
What are some of the enforcement trends we are seeing with telehealth?
Enforcement of telehealth is generally “complaint driven.” You should anticipate the potential sources of such complaints and act accordingly. An example is prescribing via telehealth to a patient who will present that prescription to a pharmacist in a state where the provider is not licensed. A call to that pharmacy to discuss what you are doing and why can reduce such complaints. Another is website advertising and soliciting of patients solely via telemedicine for therapies that might be considered unusual or profit driven in the state where the provider is not licensed.
Does my Copic policy cover telehealth?
In general, Copic’s policies do provide coverage for telemedicine, however, important areas to consider in determining the scope of coverage are highlighted in the Copic Insight: Navigating the Medical Liability Aspects of Telehealth booklet. Changes in services offered and/or other significant practice changes should be discussed with your agent and/or Copic underwriter to confirm an understanding of coverage. This is particularly important if you provide services in more than one state.
Is there a special license I need to treat patients using telehealth?
There is no nationwide license for telemedicine. As with all professional healthcare services, state laws primarily govern. With limited exceptions, states require healthcare practitioners that treat patients through telemedicine to be licensed in the state of the physical location of the patient at the time of service. A licensed professional practicing in a state through telehealth is subject to the state’s medical practice act and all medical board regulations and policies, and should be familiar with these.
During the declared COVID-19 emergency, a number of states waived some licensure provisions through executive orders. By May 2023, all such waivers expired. Most states have reverted to requiring full state licensure for practitioners who deliver telehealth services to patients located within their borders. However, at least a dozen states have created limited licenses or registries that allow telehealth services by out-of-state providers. Application processes can be found on state medical board sites.
Telehealth providers who wish to offer services in jurisdictions where they are not licensed are advised to contact each relevant regulatory agency to understand its requirements. This is understandably burdensome. Hopefully mechanisms to make interstate telemedicine easier will be implemented in coming years.
Becoming licensed in several states to perform telemedicine is an arduous application process that is somewhat mitigated by the Interstate Medical Licensure Compact (IMLC)—adopted by 42 states, D.C., and Guam that seek to streamline the application process (imlcc.com). However, please note that the IMLC process still requires a practitioner to obtain licensure from each state’s medical board in which the practitioner seeks to provide telemedicine services and to pay the applicable licensing fee.
If a practitioner provides healthcare services in a state without that state’s license, the practitioner can be subject to disciplinary action. Additionally, any negative complaint against a practitioner is required to be reported to each state participating in the IMLC.
What do I need to know about scope of service when providing telehealth?
Telehealth services must be consistent with the scope of practice and privileges otherwise provided in an in-person manner. Telemedicine implies that the provider’s scope of practice and expertise for a given clinical situation are equal to that of an in-person traditional encounter. When that is not possible to achieve in a telemedicine setting, escalation to a clinical setting equipped to deliver that level of care is necessary. Except in extraordinary circumstances, it will be insufficient as an excuse to claim a different standard or that the limitations of the medium were the reason for the failure or delay in performance.
Regardless of initial screening or triage, there should be a process by which the patient can be referred to the next available provider who has the requisite scope of practice, training, and experience. There should be a backup/contact plan for the rare possibility that a patient experiences an emergency during a telehealth session or the session is interrupted. This is particularly important if the provider is not licensed in the jurisdiction where the patient is located.
The information provided herein does not, and is not intended to constitute legal, medical, or other professional advice; instead, this information is for general informational purposes only. The specifics of each state’s laws and the specifics of each circumstance may impact its accuracy and applicability, therefore, the information should not be relied upon for medical, legal, or financial decisions and you should consult an appropriate professional for specific advice that pertains to your situation.
Article originally published in Copic’s Copiscope 1Q26 newsletter.
