Telemedicine can be a great tool for treating patients, especially during times like these. But it's important to know the laws and regulations surrounding the practice of telemedicine, especially across state lines.
Posted in ND Insights Newsletter on Tuesday, December 1, 2020
Telehealth is a delivery method for the care, not a different type of care. So, scope of practice, standard of care, regulatory compliance, complete and accurate documentation, boundaries and privacy laws, all still apply the same as if the patient was in your office. Several parts of HIPAA and some state privacy laws have been temporarily suspended by emergency orders during the COVID-19 pandemic to encourage adoption of delivering care via remote means, and reducing potential exposure and risk to patients and providers. They will eventually return to normal. Providers should create systems which would outlast the pandemic and remain compliant. Also of note: other regulatory oversight has drastically increased as we see actions by agencies who typically do not bother themselves with naturopaths such as FTC, OSHA, DOJ, among others.
Some risks unique to delivering care to patients via remote phone or video conference include:
Practicing Without a License in a Regulated State
The very first question you should ask is, where is the doctor physically located and where is the patient physically located? When the doctor and the patient are both in the same state, that’s simple. If doctor and patient are in different states:
If the doctor is in an unregulated state, and the patient is in a regulated state:
If the doctor does not have a license in the state where patient is located, the doctor is practicing without a license in that state. The licensing body would likely take issue with that and possibly initiate action.
If the doctor is in a regulated state and the patient is in an unregulated state:
The doctor is clearly practicing in the state where they are physically located and must hold a license to practice. However, since the patient is not located in a state which regulates naturopaths, there is no risk of a naturopathic board investigating. However, some health departments and Medical Boards in unregulated states take issue with NDs reaching into their state and practicing medicine without a license. There have been cases of prosecution for unlicensed practice of medicine.
If both patient and doctor are in regulated states:
The doctor is technically practicing in both states so the more restrictive scope of practice would apply, and the highest regulatory requirement would also apply. In that scenario, the naturopathic doctor needs to be licensed in both states.
If both doctor and patient are in unregulated states:
The risk is the health department or medical board in either state can take action against the doctor and prosecute for unlicensed practice of medicine.
You should perform your own analysis of where you are and where the patient is physically located and look at AANP’s map of Regulated States and Regulatory Authorities.
Practicing Outside the Scope of Practice
States vary greatly in their scope for naturopaths so when an ND who practices in State A treats a patient physically located in State B, assuming the doctor is licensed in both states, they must employ the more restrictive scope of practice between states A and B.
Example: Naturopath Jane is physically located in Oregon; her patients typically come to her office. COVID-19 has made that impossible so Dr. Jane, ND, has opened up her practice to telemedicine, treating the same patients she normally sees in her office over Zoom. Patient Mary’s pain is controlled with a prescription for Hydrocodone. Mary has a Zoom telemedicine visit and Jane renews the prescription for the controlled substance. Mary is physically located just across the Columbia River, 3 miles from Dr. Jane’s Oregon clinic in Vancouver, Washington. Washington’s scope of practice for NDs is more restrictive than Oregon with prescription of controlled substances limited to testosterone and codeine containing substances in Schedules III-V and out of state scripts by naturopaths not accepted. If Mary takes the prescription to a pharmacy in Washington, Dr. Jane will likely have a Washington Department of Health investigation initiated by the pharmacist.
Best practice: When you are dually licensed, and you and the patient are located in different states, always abide by the more restrictive scope of practice to stay out of trouble.
Missing or Insufficient Documentation
Doctors tend to be less thorough with their documentation when conducting telemedicine, especially during phone visits. Telehealth documentation requirements are identical to in-office visits. If doctor and patient are in different states, the doctor should be licensed in both states if they are both licensed states, and strive to meet the higher documentation requirement between the two states.
Failing to Appropriately Evaluate
Remember, what is different is the delivery method, not the care. Some things cannot be done from a distance via Zoom. You may miss important clues or fail to identify a relevant issue. If an adequate visit cannot be conducted via telehealth, recommend an in-person visit. If the risk is too high because of COVID-19, refer your patient to a clinic that is physically open and set up to handle high risk patients, or if the problem is urgent, refer to ED or Urgent care.
Failing to Refer to Specialists or Additional Testing
It is important to refer appropriately when providing care via remote connection. Again, standard of care remains the same whether you conduct the encounter in person or via Zoom.
Identifying as a “Consultant” Instead of a Doctor
You are practicing naturopathic medicine and you must abide by all rules, stay within the scope of practice and meet the minimum standard of care. Simply calling yourself a consultant, coach, or teacher does not remove you from the regulatory scheme and only gives you a false sense of safety. As long as you are a licensed naturopathic physician, you cannot take off the doctor hat, and you will be held to the standards of care for naturopathic doctors.