Giving House Calls a New Meaning: The Expansion of Telemedicine in the Age of COVID-19PDF
A doctor making a “house call” no longer has to travel to the patient’s home to examine and treat the patient in person. Instead, physicians can now make house calls in a less traditional sense – by using technology to evaluate and diagnose patients virtually. This mode of treatment, commonly known as “telemedicine,” while used by providers to a varying extent before 2020, has become a more routine method of treatment during the COVID-19 pandemic.
The Federation of State Medical Boards, which represents state medical boards and assists in the regulation of physicians, defines telemedicine as “the practice of medicine using electronic communication, information technology, or other means between a physician in one location, and a patient in another location, with or without an intervening health care provider.” The use of telemedicine increased dramatically over the course of the COVID-19 pandemic – according to FSMB, telemedicine visits increased by more than 2,000% within the first six months of the pandemic. Telemedicine has allowed physicians to render necessary medical care while minimizing the risk of transmission of SARS-CoV-2. Furthermore, the CDC has explained that telemedicine also increased access to health care for individuals who do not have ready access to health care providers. With telemedicine expanding significantly, it is important to stay abreast of key aspects of the practice, including the applicable standard of care, licensing matters, and relevant state guidance on what is and is not permitted.
Medical Licensure and Standard of Care for Telemedicine: North Carolina and South Carolina
Like other regulated health professions, the practice of medicine is regulated by individual states through a state medical licensure board with regulatory and disciplinary authority over physicians who practice in that state. As a general rule, physicians must be licensed in every state in which they intend to practice medicine.
In North Carolina, there is a 13-member medical board that “regulates the practice of medicine and surgery,” and issues licenses to practice medicine. South Carolina also has a 13-member board, the State Board of Medical Examiners. The North Carolina Medical Board and the South Carolina State Board of Medical Examiners are both empowered by statute to adopt rules to regulate the practice of medicine in the respective state. While North Carolina has no law specifically addressing telemedicine and physicians, in 2010, the NCMB issued a position statement setting forth guidelines for physicians. Importantly, the NCMB states that “licensees providing care to North Carolina patients via telemedicine will be held to the same established standard of care as those practicing in traditional in-person medical settings,” and that “[t]he Board does not endorse a separate standard of care for telemedicine.” Thus, physicians treating patients via telemedicine are subject to the same regulations, and held to the same standard of care, as physicians treating patients in person.
South Carolina adopted a law in 2016 that sets requirements for, and gives the SCSBME authority over all practice of, telemedicine. Similar to the NCMB’s position statement, the South Carolina law provides that all physicians treating patients via telemedicine “shall adhere to the same standard of care as a licensee employing more traditional in-person medical care and be evaluated according to the standard of care applicable to the licensee’s area of specialty.”
North Carolina and South Carolina: Additional Guidance on Practicing Telemedicine
The NCMB’s position statement and the South Carolina law provide additional guidance to physicians regarding of the practice of telemedicine, such as staff training, medical examinations, physician-patient relationships, prescribing medicine and maintaining medical records. Both states emphasize the importance of telemedicine providers using practices largely consistent with traditional, in-person treatment. The NCMB’s position statement and the South Carolina law require physicians to verify the patient’s identity before treatment to reduce the risk of fraudulent activity, maintain a complete record of the patient’s care, and ensure compliance with federal and state privacy laws. Additionally, both states require physicians to establish a patient’s diagnosis using “accepted medical practices,” such as considering a patient’s medical history, mental and physical examinations, and, if necessary, laboratory testing. Notably, one area where telemedicine cannot fully meet a patient’s potential needs in both North and South Carolina relates to prescriptions of medication. The NCMB’s position statement provides that physicians may not prescribe controlled substances without first having in-person contact with the patient, as this would contravene the applicable standard of care. The South Carolina law has a similar prohibition, but goes even further, prohibiting prescribing certain other drugs via telemedicine.
Given the dramatic increase in the use of telemedicine during the pandemic, there has been a surge in proposed telemedicine legislation and regulations at both the state and federal level. In 2021 alone, there were hundreds of proposed bills and regulations related to telemedicine in various states. Consequently, it is likely that the legal landscape surrounding telemedicine will soon see a lot of change. The Health Care and Regulated Professions Practice Groups at Robinson Bradshaw are ready to navigate the coming changes to telemedicine law in states across the country.
Licensure as a Barrier and Potential Resolutions
Although the rise in use of telemedicine has expanded access to health care, the COVID-19 pandemic has also highlighted obstacles to the continued use and expansion of telemedicine. One key issue with the use of telemedicine is the lack of a multistate or uniform licensure system for physicians. As the NCMB notes in its position statement, “the Board deems the practice of medicine to occur in the state where the patient is located.” As such, any physician who uses telemedicine to treat patients located in North Carolina must be licensed to practice medicine in North Carolina. South Carolina follows the same principles. Accordingly, physicians providing telemedicine services may only treat patients in states in which the physician is licensed to practice medicine.
During the early stages of the COVID-19 pandemic, many states waived licensing requirements, enabling doctors to treat patients regardless of the state in which the patient resided or was physically present. For example, North Carolina Gov. Roy Cooper’s Executive Order No. 116 waived the requirement that a physician must be licensed in North Carolina to treat a patient in North Carolina, and allowed health care workers to treat patients in North Carolina so long as they were licensed in another state, territory or the District of Columbia. However, states are now largely rolling back these waivers or are allowing them to expire. Per Executive Order No. 245, the waiver in North Carolina expires on April 5, 2022, and South Carolina’s waiver has already expired. Indeed, the majority of states no longer have these waivers in place, meaning that in order to provide telemedicine services to patients, a physician typically must again be licensed in the state where the patient is located. These licensure requirements can act as a barrier to the development of a robust telemedicine practice, which can be particularly problematic in states where certain specialists may be scarce.
Traditionally, state medical boards have been hesitant to cede any of their authority over medical licensure requirements in their state in order to preserve public protections and patient safety. Recently, however, certain states have entered into the “Interstate Medical Licensure Compact.” Established in 2017, the Interstate Medical Licensure Compact is an agreement among states – 33 so far – to simplify, streamline and expedite the process for physicians to obtain licensure in the member states. Physicians must meet eligibility requirements, such as residing in a state that is a member of the Compact and maintaining at least 25% of their practice in that state, in order to be licensed through the Compact. Additionally, physicians must meet standard eligibility requirements, such as graduating from an accredited medical school, for obtaining licensure in any state. Physicians must pay a fee to join the Compact and pay the license fee in each state in which they intend to practice. Participation has dramatically increased during the COVID-19 pandemic; in the 12-month period before February 2020, the Compact issued 3,877 licenses. Between March 2020 and February 2021, the Compact issued 8,126 licenses. The increase in participation, noted the Interstate Medical Licensure Compact Commission, allowed telemedicine services to expand in a time when increased access to medical care was critically needed.
Technological advances have facilitated the expansion of telemedicine, and the COVID-19 pandemic has further encouraged that expansion. Although telemedicine has been beneficial throughout the COVID-19 pandemic, there is a broad range of other issues to consider. In addition to licensure, other potential obstacles include insurance coverage and payor reimbursements, privacy and patient data security, and other state regulatory matters. The Robinson Bradshaw Health Care and Regulated Professions Practice Groups can help and advise on the complexities of this rapidly growing field.