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Federation of State Medical Boards Passes Model Telemedicine Policy

Written by Kate Stewart

On April 26, 2014, the Federation of State Medical Boards (“FSMB”) adopted a Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine (the “Model Policy”).  The Model Policy addresses many of the concerns of state medical boards in addressing telemedicine practice, including establishing a physician-patient relationship, appropriate online medical care, HIPAA compliance and patient privacy, and prescribing drugs based on a telemedicine encounter.  Despite proposed amendments from telemedicine advocacy groups, including the American Telemedicine Association (the “ATA”), the Model Policy was adopted without any amendments.  Though state medical boards are not required to adopt the Model Policy, boards are likely to use it to guide their thinking on telemedicine even without wholesale adoption.

The Model Policy replaces the FSMB’s 2002 Model Guidelines for the Appropriate Use of the Internet in Medical Practice.  Compared to this earlier guidance, the 2014 Model Policy reflects the technological developments of the past decade and the growing acceptance of telemedicine.  Where the 2002 Guidelines provided that e-mail and other electronic communications should supplement (but not replace) the interpersonal interactions between physicians and patients, the 2014 Model Policy provides that, in some situations, telemedicine technologies can be used in lieu of in-person care.  Recognizing the scope and types of care provided via telemedicine, the 2014 Model Policy provides more fulsome guidance on practice issues, including arranging for emergency services, providing for continuity of care, maintaining a patient’s medical record, and necessary disclosures and functionalities for an online telemedicine platform.  Some of the key provisions of the Model Policy are further described below.

Defining Telemedicine

             In defining telemedicine, the Model Policy provides that both secure videoconferencing and “store and forward” technology can be part of telemedicine practice, but provides that, generally, audio-only, email, and instant messaging technologies are not telemedicine.  The ATA raised concerns with this definition, noting that even before the advent of modern telemedicine technologies, practitioners used telephone contact to monitor patients. 

 Disclosures and Functionality of Online Telemedicine Technologies

             The Model Policy provides a number of disclosures and functions that should be part of an online telemedicine platform.  Developers of these platforms, and provider using them, should carefully review the items included in the Model Policy.  These requirements include disclosing fees, disclosing the contact information and license information of the physician, providing a method for patients to give feedback and to access and amend their patient records, and using a domain name that accurately reflects the online provider’s identity.  Additionally, the Model Policy cautions that physicians should not benefit financially (as in a “pay per click” arrangement) from linking to other websites from the online platform. 


            The Model Policy addresses online prescribing via telemedicine by offering multiple protections that enhance patient safety, including keeping detailed documentation on the telemedicine encounter and potentially integrated a telemedicine platform with an e-prescription system to reduce errors.  The Model Policy also provides that: “to further assure patient safety in the absence of a physical examination, telemedicine technologies should limit medication formularies to ones that are deemed safe” by the state board. 


             Because state medical boards generally do not play a role in reimbursement and coverage decisions for health care services, the Model Policy does not address reimbursement for telemedicine services.  A number of states already provide for coverage for telehealth services in their Medicaid programs or require coverage by private insurers.  States may look to the Model Policy to guide future changes to reimbursement laws, particularly in the areas of defining of telemedicine service and standards that must be met for a service to be reimbursable. 

             Telemedicine platform developers, institutional providers using telemedicine, and individual practitioners engaged in telemedicine should all review the Model Policy carefully and continue to follow developments in the states in which they operate. 

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Karen S. Lovitch

Chair, Health Law Practice & Co-Chair, Health Care Enforcement Defense Practice

Karen advises industry clients on regulatory, transactional, operational, and enforcement matters. She has deep experience handling FCA investigations and qui tam litigation for laboratories and diagnostics companies.