1. The Georgia Partnership for
Telehealth
The Doctor Will “See” You Now:
Industry Perspectives on Telehealth and
Its Legal and Regulatory Implications
Greg Billings, Executive Director
Center for Telehealth and e-Health Law
March 20, 2014
Slides may not be duplicated without consent by CTeL. Copyright 2014

2. Objectives
• Review legal and regulatory issues facing
telehealth practitioners:
– Licensure
– Prescribing of medication
– Credentialing and Privileging
– Reimbursement

3. CTeL’s History
• CTeL was founded in 1995 to address the legal and
regulatory barriers impacting the utilization of telehealth
and related e-health services.
• CTeL, formerly known as the Center for Telemedicine
Law, was created under the vision and leadership of:
– Mayo Foundation
– Cleveland Clinic
– Midwest Rural Telemedicine Consortium
– Texas Children’s Hospital
– Robert J. Waters

4. Where are the Hurdles?
• Licensure
• Credentialing and Privileging
• Diagnosing/Prescribing of medication without
an in-person/face-to-face physical exam
• Reimbursement
– Medicare
– Medicaid
– Private payers

5. Licensure for
Telehealth
• Where is the patient located?
• Telehealth practitioners must meet
licensing requirements in the state in
which they provide services.
• That is—the location of the patient.
• Licensure requirements are different in
each state.

6. Physician Licensure
• All states require medical licensure.
• 10 States have a telemedicine or special
licensure process.
• 46 States require licensure in another
locality in order to practice across state
lines.
Note: Following 2014 state legislative action, CTeL is completing a comprehensive review of all state
licensure laws. Numbers subject to change based on final research.

7. Licensure: State Exceptions
Common Thread
• Physician to physician consultation
• Resident in training
• Border states
• U.S. Military/VA physicians
• Public health services
• Medical emergencies/natural disasters

8. Licensure: Exceptions
• “Infrequent” or “occasional” consultations
permitted.
– All states allow this exception
– 7 states specifically define “occasional” or
“infrequent”
• Delaware: fewer than 12 consults per year.
• New Mexico: no more than 10 patients per year.
• Wyoming: not more than 12 days in any 52 week
period.

9. Special Telemedicine License /
Special Purpose License
1. Alabama
2. Louisiana
3. Minnesota
4. Montana
5. Nevada
6. New Mexico
7. Ohio
8. Oregon
9. Tennessee
10.Texas

10. Special Telemedicine License /
Special Purpose License
• May require other conditions for special
license:
– Maintain a full medical license in another
state
– No ethics violations
– Must not have an in-state office

11. Licensure Consultation
Requirements
• Georgia
• For special cases, the board may approve a
consultation by a regularly licensed physician
from another state or territory.
• Licensed physicians from another state or
country may be permitted to provide
consultative services for a Georgia licensed
physician provided the out-of-state physician
does not establish offices in the state of
Georgia.

12. Licensure Consultation
Requirements
• Alabama
• A physician licensed in another state is permitted to conduct an informal
consultation with an Alabama licensed physician provided that neither
physician receives compensation and the consultation does not result in
the formal rendering of a written or documented medical opinion
concerning the diagnosis or treatment of the patient by the out-of-state
practitioner.
• Out- of- state practitioners may practice in Alabama in a medical
emergency or on an irregular basis.
• The irregular practice of medicine is defined as the practice of medicine
across state lines that occurs less than 10 times per calendar year or
involves fewer than 10 patients in a calendar year or comprises less
than one percent of the physician’s diagnostic or therapeutic practice
• Practice exceeding these limits requires a special purpose license.

13. Licensure Consultation
Requirements
•South Carolina
• An out-of-state physician may provide
consultative services to a physician licensed
in South Carolina regarding the treatment of a
patient located in South Carolina.
• The consulting physician is not permitted to
prescribe, treat, operate on, or in any other
way, manage the health care of a specific
patient.

14. Licensure Consultation
Requirements
• Florida
• Out-of-state physicians are permitted to provide
consultative services at the request of a Florida
licensed physician.
• Out-of-state physicians providing consultative
services are permitted to examine the patient, take a
history and physical, review laboratory tests and x-
rays, and make recommendations to a physician
licensed in Florida with regard to diagnosis and
treatment of the patient.
• Out-of-state physicians are prohibited from
performing any medical procedure or rendering
treatment to a patient.

15. Consultation versus
Practicing?
• Can the lines be blurred between consultation and
practicing?
– Is the relationship between the consulting practitioner and
the primary practitioner at or near the same “level”?
– Or is the consulting practitioner at a significantly different
level than the primary practitioner?
• Can the lines be crossed so a consultation is
actually practicing medicine without being properly
licensed at the originating site?

16. Credentialing and
Privileging
• July 5, 2011 – credentialing and privileging “by
proxy” is permitted through CMS Final Regulation.
• Originating Site Hospital can rely on Distant Site for
Credentialing and Privileging.
• Distant Site can either be:
– Medicare Participating Hospital
– Telemedicine Entity
• Written agreement between Hospital and Distant
Site.

17. Credentialing and
Privileging
• Guidelines:
– The distant-site hospital is a Medicare-
participating hospital.
– The distant-site practitioner is privileged at
the distant-site hospital.
– The distant-site hospital provides a current
list of the practitioner’s privileges.

18. Credentialing and
Privileging
• Guidelines (continued):
– The distant-site practitioner holds a license issued or
recognized by the state in which the originating-site
hospital is located.
– The originating-site hospital has an internal review of the
distant-site practitioner’s performance and provides to the
distant-site hospital.
– Information sent from the originating-site to the distant site
must include all adverse events and complaints from
telemedicine services provided by the distant-site
practitioner to the originating-site hospital’s patients.

19. Credentialing and
Privileging
• We’re setting up a telemedicine program with
another facility? Do we have to credential and
privilege those telemedicine specialists?
• The Guiding Rule: How would the by-laws of your
facility treat those practitioners if they walked
through the front door to see the patients in person
rather through telemedicine?
• If not required: Services through telemedicine should be added to
the list of privileges already granted.
• For performance/ peer review purposes, to judge in-person and
telemedicine separately.

20. Internet/Telemedicine
Diagnosing and Prescribing:
Scope of Practice
• Prescribing statutes were written before the widespread use
of telemedicine.
• 42 states/jurisdictions require physical exam or a preexisting
physician-patient relationship before
• Diagnosing, treating, or prescribing
• Problem: Statutes use vague language.
– Can a “face to face” or “in person” examination occur through
telemedicine?
Note: CTeL has completed a comprehensive review of all state prescribing laws. This research will be reviewed by boards of jurisdiction. Summary numbers
subject to change based on research.

21. Internet/Telemedicine
Prescribing: Scope of
Practice
• 19 states allow for the physical examination to take place electronically
(each administered differently)
– Arizona - Colorado
– Florida - Georgia
– Hawaii - Louisiana
– Maryland - Nevada
– New Mexico - North Carolina**
– Ohio - Oklahoma**
– Rhode Island - Tennessee
– Texas - Utah
– Vermont - Virginia
– Washington
Note: CTeL has completed a comprehensive review of all state prescribing laws. This research will be reviewed by boards of
jurisdiction. Summary numbers subject to change based on research.

22. Internet/Telemedicine
Prescribing: Scope of
Practice
• 30 States require a Patient Medical History before
prescribing.
• 29 States allow for emergency prescribing in
specific situations.
• 36 States specifically prohibit medical
questionnaires and/or patient supplied history as
sole basis for prescription.
Note: CTeL has completed a comprehensive review of all state prescribing laws. This research will be reviewed
by boards of jurisdiction. Summary numbers subject to change based on research.

23. Telemedicine Prescribing
Requirements
• Georgia
• It is unprofessional conduct for a practitioner to diagnose
and treat a patient without conducting a physical
examination beforehand.
• Georgia does recognize telemedicine as a legitimate
method of conducting that required physical examination.
• It is considered unprofessional conduct to prescribe a
controlled substance for a patient based solely on a
consultation via electronic means with the patient, patient’s
guardian, or patient’s agent.

24. Telemedicine Prescribing
Requirements
• Alabama and South Carolina
• A practitioner must establish a bona fide
relationship with the patient through a “personal”
examination before diagnosing and treating.
• An examination via two way, audio video
telemedicine is not recognized as a legitimate
method of conducting the required “personal”
examination before prescribing.

25. Telemedicine Prescribing
Requirements
• Florida
• A practitioner must make a documented patient
evaluation, which includes a physical
examination, before diagnosing/treating patient.
• Telemedicine, via two-way, audio-video, is
recognized as a legitimate method of
conducting the required physical examination.
• Prescribing medications based solely on an
electronic medical questionnaire constitutes the
failure to practice medicine within the accepted
standard of care.

26. How Is the Physician-Patient
Relationship Established?
Does the State . . .
• Require “in person” or “face-to-face exam”? (31 states)
• Allow that exam to be conducted through two way, audio-video (conforming to
standard of care)? (19 states)
• Stipulate that the telemedicine examination be “equivalent in scope to a face-to-
face encounter” and meet all “applicable standards of care”, including the
ordering of diagnostic tests?
• Allow that exam to be conducted through a telephone call? Through an email?
Through an online portal? Phone app?
• Allow the “on call” privileges to be assumed by a physician not designated by the
primary care physician?

27. How Is the Physician-Patient
Relationship Established in this State?
“Unprofessional conduct” includes the following:
• providing treatment, rendering a diagnosis, or
prescribing medications based solely on a patient-
supplied history that a physician licensed in this
state received by telephone, facsimile, or
electronic format;
• prescribing, dispensing, or furnishing a prescription
medication to a person without first conducting a
physical examination of that person, unless the
licensee has a patient-physician or patient-physician
assistant relationship with the person.

28. How Is the Physician-Patient Relationship
Established in this state?
A. A physician shall perform a patient evaluation adequate to establish
diagnoses and identify underlying conditions or contraindications to
recommended treatment options before providing treatment or prescribing
medication.
B. A XXXXX-licensed physician may rely on a patient evaluation
performed by another XXXXX-licensed physician if one physician is providing
coverage for the other physician.
C. If a physician-patient relationship does not include prior in-person,
face-to-face interaction with a patient, the physician shall incorporate real-
time auditory communications or real-time visual and auditory
communications to allow a free exchange of information between the
patient and the physician performing the patient evaluation.

29. Confusion Reins
Statutes and regulations are not always clear . . .
Enforcement is a question . . .
• Why the confusion? The landscape . . .
• What is the “standard of care” for “minor” issues?
• Providers in programs offer care directly to patients they
never have met in person and are not seeing through
traditional “on-call” relationship.
• Provider companies use a telephone encounter. Or interact
through a web portal. Or email. Or phone app.
• Provider companies join with insurance companies, major
corporations, and hospital systems.
• People often read these developments in the news media and
assume “it must be legal if XYZ is involved.”

30. Confusion Reins:
“The Wild Wild West”
"If you can think of it, someone is
doing it" (or will be soon).
(senior medical official at a state medical board)
• News “sexy” on “telehealth”
• Low cost
• Ease of care

31. Scope of the Issue?
• Web Search . . .
• “telemedicine physician”
• “telemedicine doctor”
• “find a telemedicine doctor”
• “see a telemedicine doctor”

32. Example #1:
Problem: Urinate too frequently
• Describe symptoms in an email
• Few minutes later, you get a doctor’s response
• Answer questions. “Probably a UTI”
• “Antibiotic is prescribed and you are done.”

33. Example #2:
• Offers you instant and direct access to doctors.
• Necessary care provided by using telephone.
• What can be treated?
• doctors can diagnose, recommend treatment and
prescribe medication for many medical issues.
• Over 60% of in-person doctor appointments are purely
informational.
• Alternative that is every bit as effective as an in-office
visit.

34. Example #3:
Problems Treated by this Service:
• Sexually transmitted diseases
• Allergy, cold, and cough
• Breast infection, breast pain
• Bladder infection
• Interaction with Nurse Practitioner through
a web portal

35. Confusion Reins:
“The Wild Wild West”
“One night last fall, XXXXX’s 9-year-old son came home with a swollen
throat and fever. It was after dinner, so she flipped open her laptop and
dialed into XYZ.com, a service offered by her insurer, XXXXXX, that
connects patients with doctors via video calls. Fifteen minutes later,
XXXXX says, “we were on with a doctor.”
“After a quick diagnosis of an infection (the doctor, XXXXXX says,
treated it as strep, though couldn’t diagnose that without a test), a
prescription for an antibiotic was called in to a pharmacy near XXXXXX’s
home in XXXXXX, Ohio. “By 10 p.m., I was back home,” she says. “It was
quick and easy.” Her other options would have been to see a doctor in
the morning or risk a long wait at an urgent care facility. The video call
was faster and cheaper—it cost $40 instead of the $100 a pediatrician
would charge, she says.”
Faster, Cheaper . . . But no mention of quality of care.

36. Confusion Reins:
“The Wild Wild West”
Why Should This Be Of Concern?
Overprescribing and Antibiotic Resistance: The Problem
• More that 2 million antibiotic resistant infections in the US annually
• At least 23,000 deaths
• Most important factor for antibiotic resistance--antibiotic use
• Inappropriate use most common for acute respiratory tract infections
• Over half of all outpatient antibiotic use unnecessary
• JAMA Study on e-Visits: For UTIs, 99 percent of e-visits resulted in an
antibiotic, compared to 49 percent of office visits
• Antibiotics are responsible for almost 1 out of every 5 visits to
emergency departments for drug-related adverse events
Centers for Disease Control and Prevention (CTeL Webinar, January 2014)

37. Confusion Reins:
“The Wild Wild West”
If you see a news story describing a
practitioner diagnosing a first time
patient’s “minor” issue over a web
cam, telephone, phone app, or email,
don’t assume the encounter is
compliant with state law/regulation.

38. Telehealth
Reimbursement
• Medicare Statute (2001)
– Originating sites in certain locations (rural)
– Specific practitioners eligible
– Covered procedures specified with codes
– In 2011, Medicare reimbursed approximately
$6.4 million under the Medicare Physician Fee
Schedule
• Medicaid
– Approximately 45 states cover certain telehealth
services.

39. Telehealth
Reimbursement
• 20 States and District of Columbia mandate private
payer telehealth coverage.
– California - Colorado - District of
– Georgia - Hawaii Columbia
– Kentucky - Louisiana
– Maine - Maryland
– Massachusetts - Michigan
– New Hampshire - Oklahoma
– Oregon - Texas
– Vermont - New Mexico
– Montana - Virginia
– Mississippi - Arizona

40. So, Now You Know About
the Hurdles . . .
• The concrete “black and white” answers may not
exist.
• You may think the statute or rule is “stupid”
– Your opinion doesn’t count! Just kidding . . .
– Your input on what it should say and your professional
expertise does count!
• Incorporate the legal and regulatory questions into
your business model at the beginning, not the end.
– Seek telehealth-experienced counsel early.
– The legal and regulatory problems won’t just go away if
you don’t address them.
– They only get worse.

41. Contact Information
Greg Billings
Executive Director
Robert J. Waters Center for Telehealth
and e-Health Law
P.O. Box 15850
Washington, D.C. 20003
202.499.6970
Greg@ctel.org
www.ctel.org