Presenting a live 90-minute webinar with interactive Q&A Telemedicine Requirements for Licensing, Scope of Practice and Reimbursement Overcoming Multistate Regulatory Hurdles for Healthcare Providers and Facilities TUESDAY, NOVEMBER 21, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Joseph P . McMenamin, Principal, McMenamin Law Offices , Richmond, Va. René Y . Quashie, Member, Cozen O'Connor , Washington, D.C. Richard K. Rifenbark, Principal, Polsinelli , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Telehealth Licensing & Scope of Practice Issues Joseph P. McMenamin McMenamin Law Offices 4
The Practice of Medicine Defining the practice of medicine: state law issue Holding oneself out as a doctor to the public Charging for medical services Providing a medical consult Issuing orders (labs, imaging studies) Making a diagnosis Recommending treatment Writing prescriptions Performing treatments/surgery \ 5
Telemedicine and Licensing ■ Licensure is States’ primary means of regulating providers ■ MD offering care via telemedicine may be subject to licensure rules of: ■ The state in which the patient is physically located at the time of the consult; ■ The state where the physician is located/licensed \ 6
Telemedicine and Licensing, 2 ■ Received wisdom: Governing law is that of patient’s state Some states: law or guidance Others: include diagnosing or treating through “electronic or other means” in definition of the practice of medicine Others: silent An opportunity to challenge the received wisdom? 7
Challenging Convention D radiologist interpreted images sent from Berks County, Pa. in Philadelphia, so venue proper there Wentzel v. Cammarano , 2017 Pa. Super. 223 Care was provided in Houston, where lab located, and to which specimens were shipped, not in La., where the patients were and where samples were collected Quest Diagnostics Clinical Labs., Inc. v. Barfield , No. 2015- 0926 (La. App. 1 Cir. 9/9/16) Medicare place of service codes: telemedical care is provided at the health care professional’s site Apportioning unrelated business income of tax-exempt hospitals providing distance care: provider’s location is a relevant consideration 8
Physician Licensing Exceptions Special Bordering Follow-Up Consultation Endorsement License or State Care Registration • Unlicensed • Physician • MD • MD may • Abbreviated MD may licensed in licensed in license or provide consult peer another registration bordering follow-up to peer with state can, for state may care to MD licensed on that telemedicine practice in patient in the state -only care basis, more state (post-op, quickly • Available in • Offered in e.g.) • A few obtain in- several most states; states only state license states significant variances in scope • So, requires state-by- state analysis 9
Consultation Exception ■ MD unlicensed in state may offer consults to MDs licensed there ■ Peer-to-peer: local MD retains control of dx, tx ■ Unlike consultant, interacts with patient ■ State board retains control of its licensee ■ Example: Arizona − “This [licensing statute] does not apply to… (1) A doctor of medicine residing in another jurisdiction who is authorized to practice medicine in that jurisdiction, if the doctor engages in actual single or infrequent consultation with a doctor of medicine licensed in this state and if the consultation regards a specific patient or patients.” (emphasis added) − Ariz. Rev. Stat. § 32-1421 10
Consultation Exception, 2 ■ Highly variable: − Frequency of consults − Free v. for compensation − In-state office or location to meet − Primary vs. secondary diagnosis − Contractual arrangement or regular contacts 11
Bordering State Exception ■ Out-of-state physician licensed in a bordering state ■ Example: Maryland − “ Subject to the rules, regulations, and orders of the Board, the following individuals may practice medicine without a license… A physician who resides in and is authorized to practice medicine by any state adjoining this State and whose practice extends into this State, if: (i) The physician does not have an office or other regularly appointed place in this State to meet patients; and (ii) The same privileges are extended to licensed physicians of this State by the adjoining state .” Md. Health Occ. Code § 14-302 (emphasis added) 12
Special Telehealth License ■ Abbreviated license or registration for telemedicine-only care provided to state residents ■ Nine states offer special telehealth licenses 13
Special Telehealth License, 2 ■ Example: Minnesota − “(a) A physician not licensed to practice medicine in this state may provide medical services to a patient located in this state through interstate telemedicine if the following conditions are met: (1) the physician is licensed without restriction to practice medicine in the state from which the physician provides telemedicine services; (2) the physician has not had a license to practice medicine revoked or restricted in any state or jurisdiction; (3) the physician does not open an office in this state, does not meet with patients in this state, and does not receive calls in this state from patients; and (4) the physician annually registers with the board, on a form provided by the board.” Minn. Stat. Ann. § 147.032 (emphasis added) 14
Follow-Up Care Exception MD may provide follow-up care (post-op, e.g.) Example: Indiana “In addition to the exceptions described in section 2 [IC 25-22.5-1-2] of this chapter, a nonresident physician who is located outside Indiana does not practice medicine or osteopathy in Indiana by providing … treatment services to a patient in Indiana following medical care originally provided to the patient while outside Indiana .” − Ind. Code Ann. § 25-22.5-1-1.1 (emphasis added) 15
Endorsement ■ Based on his out-of-state credentials, physician licensed elsewhere can obtain in-state license faster ■ Example: New Mexico − “The board may grant a license by endorsement to an applicant who: (1) has graduated from an accredited U.S. or Canadian medical school; (2) is board certified in a specialty recognized by the American Board of Medical Specialties; (3) has been a licensed physician in the U.S. or Canada and has practiced medicine in the U.S. or Canada immediately preceding the application for at least three years; (4) holds an unrestricted license in another state or Canada; and (5) was not the subject of a disciplinary action in a state or province.” − N.M. Stat. Ann. § 61-6-13 (emphasis added) 16
Licensing Compacts ■ Interstate Medical License Compact ■ Nurse Licensure Compact and APRN Compact ■ Psychology Interjurisdictional Compact ■ Physical Therapy Licensure Compact ■ No others on the horizon at present 17
Interstate Medical License Compact ■ Additional licensure approach for physicians in Compact-participating states ■ Physician licensure portability and practice of cross- border services ■ Complements existing licensing and regulatory authority of state medical boards ■ Must still become fully licensed in each state ■ Must still pay fees ■ Twenty-two states have joined (as of 11/17) 18
Nurse Licensure Compact ■ Permits nurse to practice in own state and other Compact states ■ If a Compact state is the primary state of residence, the license automatically becomes a Compact/multistate license ■ 25 states have adopted the Compact to date ■ National Council for State Boards of Nursing approved APRN Compact (5/4/15) 19
Psychology Interjurisdictional Compact Association of State and Provincial Psychology Boards approved (2/15) Goal: facilitate telehealth and temporary, in-person, face-to- face [not defined] practice of psychology across state lines Became operative after seven states adopted the Compact At present, no provision for Provinces Three states have adopted to date: Arizona, Utah, and Nevada 20
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