Healthcare providers and patients have embraced telemedicine during the COVID-19 outbreak as a way to ensure on-going medical care while minimizing potential exposure to the virus. But many of my patients live outside of Ohio, so can I use telemedicine to care for them? Unfortunately, the answer is probably not.
“The practice of medicine is deemed to occur in the state in which the patient is located.”
Physician medical licenses are state-specific. Therefore, a physician must have a medical license issued by the state medical board in each state that physician practices in. But if the physician is in one state and the patient is in another state during a telemedicine encounter, which state is the medical practice location? The State Medical Board of Ohio, like most other states, defines the location of the practice of medicine to be where the patient is physically located, not where the doctor is physically located.
So, if a patient from West Virginia comes to see me for a face-to-face visit in my office in Columbus, Ohio, the practice of medicine occurred in Ohio. But if I did a telemedicine visit with that patient while the patient was in their home in West Virginia, the practice of medicine occurred in West Virginia. And since I only have an Ohio medical license, I would technically be practicing medicine without a license.
Each state has different laws about medical licensure
In Ohio, the laws pertaining to telemedicine are derived from section 4731-11-09 of the Ohio Administrative Code that applies to the prescription of medication. This law states that a physician cannot prescribe any controlled or non-controlled medication to a patient unless that physician has conducted a physical examination of that patient. However, an exception exists if the following criteria are met:
- The physician establishes the patient’s identity and location
- The patient provides informed consent for treatment
- The physician completes a medical evaluation
- The physician establishes a diagnosis and treatment plan
- The physician provides appropriate follow-up recommendations
- The physician documents the encounter in the medical record
- The physician uses appropriate technology sufficient to conduct the encounter
The State Medical Board has stricter rules regarding the prescription of controlled substances, such as opioids. If a physician has never conducted a physical examination on a patient, the physician cannot prescribe controlled substances except in a few situations, such as the physician is cross-covering for another physician who has examined the patient or if the patient is in hospice.
Physicians outside of Ohio who want to provide telemedicine care for patients who live in Ohio must obtain an Ohio telemedicine certificate (at a cost of $350) and are held to the same standard of care as a physician having a regular Ohio medical license.
The COVID-19 emergency has changed state telemedicine regulations
Each state has responded differently to telemedicine regulation changes brought on by the COVID-19 outbreak and each state’s requirements are summarized on the Federation of State Medical Boards’ website. For the State Medical Board of Ohio, there were 2 concessions made for physicians outside of Ohio for the duration of the COVID emergency:
- They are able to provide telemedicine services to their established patients who were visiting Ohio and now unable to return to their home states due to COVID-19.
- If they are in a contiguous state to Ohio and have established patients who live in Ohio they can also provide telemedicine service to those patients.
In addition, the State Medical Board of Ohio has suspended the requirement that a physician must have performed a physical examination in order to prescribe medications and suspended the requirement for in-person visits to occur for the prescription of controlled drugs, such as opioids.
But the regulations are often very confusing. For example, during the COVID-19 emergency, West Virginia permits a physician licensed in any other state to provide telemedicine to patients located in West Virginia. However, Ohio has not made similar concessions permitting an Ohio-licensed physician to perform telemedicine visits with a patient located out of state. So, the question remains, can a physician licensed in Ohio perform telemedicine to a patient in West Virginia? The State Medical Board of Ohio says no whereas the State Medical Board of West Virginia says yes. This has important implications for malpractice insurance coverage in that if a physician’s medical license does not cover their telemedicine encounter in another state, their malpractice coverage may not cover that telemedicine encounter, either.
So what is a physician supposed to do?
The safest bet is to obtain a medical license in all of the states that your patients live in. This would also include states that your patients vacation in if you want to provide care for them by telemedicine if they get bronchitis while visiting relatives out of state. During the COVID-19 emergency, check with the State Medical Board of both the state that the physician is in as well as the state that the patient is in to be sure that both states permit out-of-state telemedicine.
For my own practice, I encourage my patients in Ohio to use one of our telemedicine options. For my patients in other states, I tell them they have to have travel to Columbus and have an in-person visit in my office.
July 25, 2020