Practicing Medicine Through Telehealth Technology

In California:

COVID-19 & Telehealth Services: On April 3, 2020 Governor Gavin Newsom signed an executive order relaxing certain state privacy and security laws for medical providers. This order is similar to the federal HHS Office for Civil Rights waiver issued on March 17, 2020 regarding federal privacy and security laws. Governor Newsom’s Executive Order N-43-20

Telehealth (previously called telemedicine) is seen as a tool in medical practice, not a separate form of medicine. There are no legal prohibitions to using technology in the practice of medicine, as long as the practice is done by a California licensed physician and complies with state and federal privacy laws.

The standard of care is the same whether the patient is seen in-person, through telehealth or other methods of electronically enabled health care. Physicians need not reside in California, as long as they have a valid, current California license.

In 1996, Senate Bill 1665 (M. Thompson; Chap 864, Stats of 1996) enacted the "Telemedicine Development Act of 1996" which imposed several requirements governing the delivery of health care services through telemedicine and also made several changes to different sections of law, which are also related to telemedicine.

Below we have listed a few highlights of Senate Bill 1665:

• The act shall not be construed to alter the scope of practice of any health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law.
• Exempts out-of-state practitioners, as defined, from the Medical Practice Act when consulting either within this state or across state lines, with a licensed practitioner in California. Prohibits the out-of-state practitioner from having ultimate authority over the care or primary diagnosis of a patient in California.
• Requires the practitioner to obtain verbal and written informed consent from the patient prior to delivering health care via telemedicine, and also requires that this signed written consent statement becomes part of the patient's medical record.
• Provides that no health care service plan contract that is issued, amended, or renewed, on and after January 1, 1997, shall require face-to-face contract between a health care provider and patient for services appropriately provided through telemedicine, subject to all terms and conditions of the contract agreed upon.

In 2011, AB 415 repealed existing law related to telemedicine and replaced this law with the Telehealth Advancement Act of 2011, which revises and updates existing law to facilitate the advancement of telehealth as a service delivery mode in managed care and the Medi-Cal program. This bill repeals and replaces section 2290.5 of the Business and Professions Code to do the following:

• Defines “Asynchronous store and forward” as the transmission of a patient’s medical information from an originating site to the health care provider at a distant site without the presence of the patient.
• Defines “Distant Site” as a site where a health care provider is located while providing services via a telecommunications system.
• Defines “Originating Site” as a site where a patient is located at the time health care services are provided via a telecommunications system or where the asynchronous store and forward transfer occurs.
• Defines “telehealth” as the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at the distant site. States that telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers.
• States that this section shall not be construed to alter the scope of practice of any health care provider.
• Provides that all laws regarding the confidentiality of health care information and a patient’s rights to his or her medical information shall apply to telehealth interactions.
• This bill also applies the Business and Professions Code Section to the laws relating to Health Care Service Plans and to the Insurance code and requires health care service plans and health insurance companies to adopt payment policies to compensate health care providers who provide covered health care services through telehealth. This bill also applies these requirements to the Medi-Cal managed care program.

In 2015, AB 809 revised the informed consent requirements relating to the delivery of health care via telehealth by permitting consent to be made verbally or in writing, and by deleting the requirement that the health care provider who obtains the consent be at the originating site where the patient is physically located. This bill requires the health care provider to document the consent.

Physicians using telehealth technologies to provide care to patients located in California must be licensed in California. Physicians are held to the same standard of care, and retain the same responsibilities of providing informed consent, ensuring the privacy of medical information, and any other duties associated with practicing medicine regardless of whether they are practicing via telehealth or face-to-face, in-person visits.