Telemedicine and the Internet

It is sometimes difficult to appreciate fully the quantum leaps that medicine has made in recent years. Yet many patients seeking access to cutting edge medical treatments, procedures and equipment have traditionally had to travel to major teaching hospitals, often at great distances, to avail themselves of the specialized care that they require. One of the most promising medical developments may be the greater availability of care brought about by a confluence of medicine and telecommunications: the evolving ability of physicians and care givers in one location to direct the medical care of a patient far away. Telemedicine, as it has come to be known, has been statutorily defined by one state, California, as:

[T]he practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video or data communications.¹

Telemedicine has been in use on a limited scale for some time. In its simplest form, telemetry units in ambulances responding to emergency calls for assistance for heart attack victims are able to relay heart function information to physicians in the hospital's emergency room enabling them to instruct the ambulance crew in stabilizing and caring for the patient at the scene and during transportation while allowing hospital staff to prepare to treat the patient upon arrival.

Teleconferencing capabilities allow specialists in one part of the country to be brought in to consult with other physicians on the care of a patient in another part of the country. Computer databases and software in one state can be accessed and used in diagnosing and treating illnesses. In the future, surgical lasers and radiation tools such as gamma-knives may be directed on a patient in one location by a physician at the controls in another location. Telemedicine thus holds great promise for extending access to top quality care to patients in rural or inaccessible areas and to those for whom movement to a hospital or medical facility is not feasible or desirable.

Legal Obstacles

Telemedicine's promise, however, must overcome considerable legal obstacles. When the states' systems of licensing medical practitioners evolved over a century ago, today's technological advances were unthinkable. Even as science continues to vanquish distance, and medicine becomes more national and even global, the states still regulate the practice of the profession of medicine within and, to an extent, even outside of their borders. As a result, if a physician in one state is called upon to treat a patient in another state using telemedical modalities, the physician generally must be licensed to practice medicine in both states. Moreover, if the physician is employed by a hospital and the telemedical care is being provided under that hospital's auspices, the hospital may be subject to licensure requirements not only in the state where it is physically located, but also in the state in which the patient is being treated.

As new arrangements for interstate referrals and treatment take shape, attorneys who are involved in structuring these arrangements must remember that, in addition to licensing statutes, most states have corporate practice and fee-splitting prohibitions that are still very much in effect. Due to wide variations in these prohibitions from state to state -- what may be permissible in one state may be illegal in another.

Concerns over stunting the promise of telemedicine have given rise to a number of proposals, including federal telemedicine licensing legislation that could preempt state licensing statutes, a uniform act governing telemedicine licensing and standards that would be enacted by the states, and regional multi-state compacts to allow cross-border telemedicine practice. If the demand for telemedicine increases, as is likely, this multi-state approach may be the beginning of national licensure and medical standards superseding the traditional state licensing function.

The Internet, which is having such a profound effect upon so many professions enables the storage and exchange of enormous amounts of medical information and allows access to many physicians and facilities with e-mail or a Web site. The sharing of general medical knowledge among physicians presents few issues, but the use of the Internet to diagnose and treat specific medical conditions poses the same licensure issues that telemedicine raises.

A licensed physician in one state who sees a patient in the office may find e-mail a fast and efficient way to follow up with monitoring the patients symptoms and condition, adjusting medications, scheduling further tests and so on, and when the patient resides in the same state there is no problem in doing so. E-mail in this circumstance should be considered no different than the telephone.

What about the situation where a patient in New Jersey crosses the Hudson River to see a physician in New York City, and then returns to New Jersey? The physician follows the patient's condition by telephone or e-mail to the patient's home in New Jersey, even though the physician is licensed to practice medicine in New York but not in New Jersey. Logically, since the patient sought out and established a patient-physician relationship by traveling to the physicians office in New York, and the physician is merely following up on the encounter in subsequent communications, such cross-border follow-up by the New York physician does not require a New Jersey license.

Possible Licensing Violations

On the other hand, if a physician licensed in New York but not in New Jersey solicits patients in New Jersey for treatment that may be conducted primarily or exclusively by e-mail, Internet, or telephone, that physician may violate New Jersey's licensing statute. Similarly, a corporation that enters the business of providing actual physician services (as distinguished from general medical information) through these media, may be in violation of both states' corporate practice prohibitions, prohibitions on unlicensed medical services and, to the extent that there is any sharing of fees, the fee-splitting prohibitions of both states. In addition, if Medicare or Medicaid is billed under any of these prohibited arrangements, the federal fraud and abuse laws may also be violated.

New York State's physician licensure requirements are strictly interpreted for out-of-state telemedicine practitioners. The New York State Education Department's Office of the Professions takes a strict view on physician licensure. In an April 1997 memorandum, the Office of the Professions stated that the consultation exemption of the Education Law, N.Y. EDUC. LAW §6526(3), "is only intended for occasional consultation"² between licensed New York state physicians and licensed out-of-state physicians.

If a physician is licensed in another jurisdiction and wants to practice medicine in New York, he or she must be licensed in New York.³ The Medical Society of New York State also takes the position that current law requires out-of-state licensed physicians to obtain a New York license for telemedicine practice.⁴ Although the current licensure standard is strict, bills under consideration by the New York Legislature may ease this burden.

Pending Legislation

Currently, the Legislature is considering three bills relating to telemedicine. The first, known as the Telemedicine Access Act of 1999 would open New York to telemedicine right away. The act would amend Education Law §6525, "Limited Permits," to allow physicians licensed in another state to practice via telemedicine in New York if the physician has filed an application with New York's Education Department.⁵ The revised §6525 would include the following language:

Section 6525-A. Practice of Telemedicine

License. 1. The Department is authorized to issue licenses for the practice of Telemedicine.

2. The practice of Telemedicine is defined as the practice of medicine in this state by a physician licensed to practice medicine outside this state and who is located outside this state, through the use of any medium, including an interactive electronic medium.

3. To qualify for a license to practice Telemedicine, an applicant shall fulfill the following requirements:

(A) Application: File an application with the department;

(B) Licensure: Be licensed as a physician in another state;

(C) Age: Be at least [21] years of age; provided, however, the commissioner may waive the age requirement for persons who have attained the age of [18] and will be in a residency program until the age of [21];

(D) Citizenship or Immigration Status: Be a United States Citizen or an alien lawfully admitted for permanent residence in the United States;

(E) Character: Be of good moral character as determined by the department; and

(F) Fees: Pay a fee of [$135] to the department for an initial Telemedicine license, and a fee of [$100] for any biennial registration. The comptroller is authorized and directed to deposit the fee for each biennial registration period into the special revenue funds -- other entitled "professional medical conduct account" for the purpose of offsetting any expenditures made pursuant to [§230] of this chapter in relation to the operation of the office of professional medical conduct within the department of health. The amount of the funds expended as a result of the imposition of such bien-nial registration fee shall not be greater than such fees collected over the registration period.⁶

The act explicitly would also allow physicians licensed in other states to consult with New York physicians by telemedicine.⁷ The existing consultation exemption in §6526(3) of the New York Education Law would be amended to allow licensed out-of-state physicians to meet "through synchronous and asynchronous interactive audio, video or data communications [with] a physician licensed in this state, for purposes of consultation, provided such practice is limited to such consultation."⁸

Patients' Consent

Additionally, the act would amend the Public Health Law so that patients must give verbal and written consent for telemedicine treatment,⁹ and the Insurance Law would be amended so that insurance policies cannot require face-to-face contact between health care providers and the insured for services provided by telemedicine.¹⁰ As of June 17, the act had been committed to the Senate Rules Committee.¹¹

The Assembly and Senate are also considering identical bills that take the more cautious approach of establishing a program to study telemedicine.¹² The telemedicine program would study legal, technical, and cost issues; survey telemedicine developments in other states and how it has been regulated by the federal government in connection with the military; and advise the Governor and Legislature.¹³

As of March 30, the Senate bill had been referred to the Senate Committee on Health,¹⁴ while as of March 29, Assembly bill had been referred to the Assembly Committee on Health.¹⁵

While the Education Law currently requires all physicians practicing medicine in New York to obtain a New York license, regardless of whether they are physically present in New York, it seems inevitable that legislation will eventually be enacted to permit the practice of telemedicine in New York.

Given New York's historically important role in medicine and public health, however, it may be preferable to require a thorough study of the implications of telemedicine before enacting a blanket authorization. Such a study would provide a stronger foundation for whatever legislation is ultimately enacted and thereby provide greater assurance that the public will be adequately protected from incompetent or unscrupulous practitioners. A major issue that should be addressed in such a study is how to protect the confidentiality of patient information in telemedicine and Internet usage. The sooner such a comprehensive study is undertaken, the sooner the future of medicine will move a step closer in New York.

Francis J. Serbaroli is a partner in Cadwalader, Wickersham & Taft. Mark Yourous, a summer associate at the firm, assisted in the preparation of this article.

1. Cal Bus. Prof. Code .§2290.5(a)(i).
2. N.Y. State Educ. Dept., Office of the Professions Memorandum, Telemedicine, [http://www.nysed.gov/prof/telemed.htm].
3. Id.
4. Telephone interview with Staff Att'y, Medical Soc. of N.Y. State (June 14, 1999).
5. S.B. 4449, 222nd Leg. Sess. (N.Y. 1999).
6. Id. at § 11.
7. Id. at § 12.
8. Id. (new text in Italics).
9. Id. at §§ 1-5.
10. Id. at § 8.
11. S.B. 4449, 222nd Leg. Sess. (N.Y. 1999) (visited July 22, 1999) [http://assembly.state.ny.us/cgi-bin/showbill?billnum=S04449].
12. Thus far, the Rules Committee has taken no action on the act. Telephone
13. interview with the office of Senator Kemp Hannon, the act's sponsor (July 22, 1999).
14. S.B. 4392, 222nd Leg. Sess. (N.Y. 1999); A.B. 7288, 222nd Leg. Sess. (N.Y. 1999).
15. S.B. 4392, 222nd Leg. Sess. (N.Y. 1999) (visited July 22, 1999) [http://assembly.state.ny.us/cgi-bin/showbill?billnum=S04392].
16. A.B. 7288, 222nd Leg. Sess. (N.Y. 1999) (visited July 22, 1999) [http://assembly.state.ny.us/cgi-bin/showbill?billnum=A07288]

This article is reprinted with permission from the July 29th issue of the New York Law Journal © 1999 NLP IP Company.