FSMB Guidance for Rules Relating to Telemedicine and Telehealth

For the first time since 2014, the Federation of State Medical Boards (FSMB) has released an updated guidance on the rules for telemedicine.  The FSMB noted its intent to provide a model that can assist state medical boards and lawmakers in expanding regulatory opportunities and enable wider adoption of telemedicine technologies while ensuring the public’s health and safety.

A parallel article by the American Medical Association (AMA) announced the AMA president’s support to aggressively expand telehealth policy, research and resources to ensure physician practice sustainability and fair payment. The AMA president further stated that “telehealth is a core element of the AMA Recovery Plan for America’s Physicians” post pandemic. The alignment of the AMA and FSMB encourages a policy that calls for physicians, health systems and others to develop educational and training information for patient groups with known limited digital literacy and access.

In outlining the rules for telemedicine, the FSMB supports a consistent standard of care and scope of practice regardless of the delivery tool that enables physician-to-patient communications. While the rules also reiterate that a physician must be licensed or authorized by the medical board of the state where the patient is located, they provide limited exceptions to permit practicing medicine via telehealth for established medical care or prospective patient screening for complex referrals. However, a patient seeking a new diagnosis must consult with a physician licensed in a state they are located. The FSMB guidance provides additional exceptions to state licensure that are designed to increase access to medical care and knowledge. These exceptions include: Physician-to-Physician Consultations; Prospective Patient Screening for Complex Referrals; Episodic and Follow-Up Care for Established Patients, which includes post travel for surgical and medical treatment; and Clinical Trials. Importantly, the rules note that physicians providing out-of-state care under any of these exceptions should ensure that their patients have backup plans to receive care locally if changes in their medical condition make that necessary.

FSMB guidance provides that practitioners utilizing telemedicine must meet the same standard of care and professional ethics used for traditional in-person patient encounters, including informed consent, detailed security measures, continuity of care and referral for emergent situations, and proper record keeping. The FSMB also emphasizes compliance with HIPAA to maintain the privacy and security of patient information, and refers practitioners to guidance issued by the Department of Health and Human Services (HHS).

The FSMB acknowledges the importance the role telehealth and telemedicine have in improving access to, and reducing inequities in, the delivery of healthcare, while clarifying goals to overcome existing barriers to telehealth that include literacy gaps, access to broadband internet, and coverage and payment of telemedicine services. Because of these limiting factors, FSMB implores state governments to pursue initiatives that expand broadband access and for health plans to develop reimbursement policies that treat services provided virtually and those provided in-person equally. It is imperative that practices continue to stay apprised of changes to laws and regulations pertaining to telehealth and telemedicine.

How Frier Levitt Can Help:

Frier Levitt continues to stay abreast of new and proposed telehealth legislation.  Frier Levitt attorneys have advised providers, marketers, and technology companies on developing and restructuring telehealth business models to comply with applicable law while considering obstacles such as licensing, prescribing, and insurance reimbursement concerns that are unique to each arrangement. If you are seeking to Launch a Telemedicine Practice or Telehealth Startup or want to ensure your compliance in an existing model, contact us to speak to an experienced telemedicine attorney who can comprehensively evaluate and recommend a compliant, sustainable model.

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