Newsletters

POSTED: July 31st, 2020
POSTED IN: EPIC - The Official Newsletter of MOCEP, July/August 2020,

Written by Patricia Yang, MD, JD, PGY-III Resident, Department of Emergency Medicine, Washington University in St Louis/Barnes Jewish Hospital

As COVID-19 becomes the new normal, medicine- and especially emergency medicine- has adjusted rapidly. While telemedicine has been gaining momentum for years, the perfect storm of a technologically connected society in quarantine has pushed telemedicine to the forefront. Telemedicine bridges the gap by providing health care services at a safe distance through various information and communication technologies. The novel coronavirus public health emergency has broken down many of the regulatory and reimbursement barriers to implementation and as a result, telemedicine is being rapidly integrated into practice. At my large academic hospital ED, for example, we implemented tele-consults and had a virtual medical screening process up and running in just a few weeks – an unfathomable speed in any other situation. Yet the rapid rise of telemedicine also brings its own unique set of rules and challenges. In this article, we’ll review basic concepts to navigate the telemedicine practice landscape in Missouri. **This is not legal advice, standard disclaimer applies**

To practice telemedicine in Missouri, you of course need a Missouri medical license. But there are a few key distinctions for a telemedicine provider. First, license restrictions are based on the location of the patient (the “originating site”), not the provider (located at the “distant site”). The case of Hageseth v Superior Court of California in 2007 serves as a warning.[i] Dr. Hageseth was a psychiatrist licensed in Colorado who prescribed medication online to a patient in California. The patient later committed suicide. The court criminally charged Dr. Hageseth with practicing medicine without a license in California. Dr. Hageseth pled guilty and was sentenced to 9 months in prison. Thus, first things first, it is critical to know if your patient is physically located within Missouri at the time of your virtual visit. However, there are three statutory exceptions to the telemedicine licensure requirement: (1) infrequent informal consults without compensation (a “curbside consult”), (2) emergency or disaster relief, and (3) consults requested by a Missouri licensed physician.[ii] Scope of practice under your license remains the same whether you are a physician or advanced practice provider, and is regulated by the Missouri Board of Healing Arts. Currently, 29 states and Washington DC have joined the Interstate Medical Licensure Compact (IMLC), which recognizes your medical license in all member states.[iii] Illinois, Iowa, and Kansas have joined the IMLC; Missouri is not a member. If you practice in St. Louis, you’ll likely need both a Missouri and Illinois license.

Missouri law explicitly states that telemedicine requires the same standard of care as medical services provided in person.ⁱⁱ In Missouri, this is the reasonable provider standard- that care should be provided with a “degree of skill and learning ordinarily used under the same or similar circumstances by members of the [same] profession”.[iv] In non-legalese, ask yourself whether you would do something differently if the patient were in front of you; the same care should be provided for a telemedicine visit.

Physicians must establish a physician-patient relationship with the person receiving telemedicine services. This may be established through a standard in-person encounter or through consultation by another physician with a previously established relationship with the patient.[v] Using telemedicine to establish a physician-patient relationship is also allowed if it meets certain conditions. The telemedicine visit must meet standard of care and telemedicine practice guidelines, the technology used must be “sufficient to establish an informed diagnosis” just as if the visit were in person, and the physician must perform an interview, review medical history, and perform an examination “sufficient for the diagnosis and treatment of the patient.”^v Often, a real-time audiovisual “camera exam” may reveal sufficient information about the patient’s general appearance, work of breathing, perfusion, skin appearance, and the presence of rash or other obvious injuries. You can use the information available to you, such as having the patient take their own pulse or obtain vital signs from a smartwatch or home device.

When prescribing medications, a valid physician-patient relationship must include an adequate history and physical exam, including identifying pertinent conditions or contraindications to treatment; sufficient discussion of treatment options and risks/benefits; appropriate follow up; and maintenance of a contemporaneous medical record, including electronic prescription information.[vi] Missouri law specifically excludes the use of a patient-completed online questionnaire as a sufficient medical interview and examination for this purpose.^v An audio-only phone call is also insufficient unless the physician has a previous physician-patient relationship.^v For controlled substances, the federal Ryan Haight Act passed in 2008 requires at least one in-person medical evaluation prior to remote prescribing, although there are limited exceptions.[vii]

Telemedicine tort liability is largely regulated by state law and there is little existing case law to provide clarity. In fact, a review of all reported state and federal cases from October-November 2018 revealed zero malpractice cases related to telemedicine.[viii] Telemedicine providers should obtain informed consent from the patient or patient’s legal guardian for telehealth services and review confidentiality, data security, and privacy concerns.[ix] Like in-person medical encounters, these telemedicine visits should be documented contemporaneously in the medical record.^viii Additionally, although not state-mandated, providers should ensure that their malpractice coverage is adequate – most typical malpractice insurance policies do not include telemedicine practice or place limits on geographic coverage.

Medicaid reimbursement for telemedicine has historically been a limiting factor in the use and availability of telemedicine. Missouri Medicaid does provide reimbursement for telemedicine, store-and-forward, and patient monitoring services. Recently, CMS has approved a number of temporary waivers to expand the use and reimbursement of telemedicine during the COVID emergency period.[x] For private payors, Missouri requires reimbursement for telehealth diagnosis, consultation, and treatment “on the same basis” as in-person care, and insurance carriers may not deny coverage for a service because it was provided through telemedicine if the same service would be covered through an in-person visit.[xi]

As you can see, the telehealth landscape is complex and encompasses regulation from state, federal, and private stakeholders. Emergency medicine providers at the forefront of medicine and public health will play a key role in the development and future direction of telemedicine. For further reading, the Center for Connected Health Policy and the Heartland Telehealth Resource Center are great places to start.[xii]

[i] Hageseth v. Superior Court, 150 Cal. App.4th 1399, 59 Cal. Rptr.3d 385.

[ii] MO Rev. Stat. § 191.1145

[iii] Interstate Medical Licensure Compact https://www.imlcc.org/

[iv] MO Rev. Stat. § 538.210

[v] MO Rev. Stat. § 191.1146

[vi] MO Rev. Stat. § 334.108

[vii] Implementation of the Ryan Haight Online Pharmacy Consumer Protection Act of 2008. DEA and Department of Justice. Federal Register, Vol 74 (64) Monday April 6, 2009. Rules and Regulations.

[viii] Fogel AL, Kvedar JC. Reported Cases of Medical Malpractice in Direct-to-Consumer Telemedicine. JAMA. 2019;321(13):1309–1310. doi:10.1001/jama.2019.0395

[ix] MO Rev. Stat. § 335.175

[x] See http://heartlandtrc.org/covid-19/

[xi] MO Rev. Stat. § 376.1900

[xii] See https://www.cchpca.org/ and http://heartlandtrc.org/