That is a question I hear from a lot of health and wellness practitioners. The answer to whether you can use a telehealth platform to practice your craft on a national, or even international basis, depends on whether you are acting under a state-issued license.

Licensed Health Care Providers

If you are practicing under a state-issued license, such as a medical doctor, nurse, psychologist, physical therapist, chiropractor or naturopathic doctor, for example, then you must be licensed in each state in which you treat patients. So, if you are physically located in Wisconsin, but your patient is located in Florida, then you must be licensed in Wisconsin and Florida. To explain, you must be licensed in Wisconsin because you are engaging in the practice of a profession that the state regulates. You must be licensed in Florida because Florida regulates your profession and aims to protect its residents through the state licensing framework. In the case the Florida, an out-of-state provider may be able to practice telemedicine to Florida residents by registering with the State of Florida, as opposed to getting a full license to practice there. See https://www.flhealthsource.gov/telehealth/files/application-telehealth-provider-registration.pdf. Of course, if a licensed health care provider wishes to practice in multiple states, they must review the laws in each state in which their patients are located; some states may have fewer restrictions for out-of-state practice than other states, depending on the type of license and whether the state has enacted laws to facilitate telemedicine across state lines.

As a licensed practitioner, you will also need to be familiar with state laws governing in-person exams and your profession’s standard of care. Even if you obey the laws regarding state licensure, a state licensing board may still penalize licensees who fail to conduct in-person exams when required by law or fail to meet the standard of care. A good example of meeting state telemedicine laws but still getting into legal trouble is seen in the case of Richard Holmes, MD. In that case, the California Medical Board suspended the license of Dr. Holmes after he prescribed Ella and Viagra to two fake patients who used the Kwikmed portal. An investigator for the medical board created two fake personas, one to order Ella, an emergency contraceptive drug, for a friend who might be pregnant, and Viagra for herself (posing as a male patient). Dr. Holmes issued both prescriptions. According to the Medical Board of California:

The standard of care for the prescription of any drug requires an appropriate prior examination. The standard of care for the prescription of Viagra requires the physician to obtain a detailed history, including urological, neurological, cardiorespiratory, and psychological elements, and to make a good faith effort to confirm that history with physical examination. With respect to prescribing Viagra, an appropriate examination would be focused on determining the etiology of the erectile dysfunction, and on excluding contraindications to the use of a phosphodiesterase inhibitor such as Viagra. The standard of care requires a genital examination be performed, to exclude anatomic defects and to detect previously undiagnosed hypogonadism. The standard of care requires that vital signs be taken, to exclude undiagnosed hypertension or arrhythmia. The standard of care requires that a cardiopulmonary examination be performed, to exclude previously undiagnosed valvular heart disease or underlying lung disease. The standard of care requires that a neurologic examination be performed, to exclude peripheral neurological pathology (e.g., diabetic or alcoholic peripheral neuropathy.) The standard of care requires that a psychological history and physical examination be performed, to exclude psychiatric disease as an etiology for sexual dysfunction. For a new patient, measurement of serum creatinine is required prior to the prescription of Viagra to determine renal function. Respondent failed to obtain an adequate history or to perform any physical examination, thereby failing to perform an adequate examination with respect to his prescribing of Viagra. These failures, separately and collectively, represent extreme departures from the standard of care.

In re Richard J. Holmes, M.D., First Amended Accusation, Case No. 800-2014-008269, at 10.

The California Medical Board further found the physician’s process in identifying the patient was an extreme departure from the standard of care. Id. The Board stated:

With respect to the prescription of Viagra, Respondent failed to confirm that the Board’s investigator was indeed a man of a certain height and weight. The prescription of Viagra to an unknown patient of unknown demographics is dangerous, as Viagra is highly sought-after by some men, some of whom have been denied a Viagra prescription by their personal physician because of life-threatening contraindications. Respondent’s failure to attempt to confirm the Board’s investigator’s identity is an extreme departure from the standard of care.

So, in the case of Dr. Holmes, even though California allows prescribing based on responses to a questionnaire, the Medical Board of California did not believe Dr. Holmes met the standard of care when he did just that.

What About Health and Wellness Coaches or Consultants?

If you are not planning to practice as a licensed health care professional, but instead want to practice as a coach, consultant, or health/wellness educator, for example, then you should not have to worry about state licensure requirements. That is, as long as you stay within the role of a coach, consultant or educator, you should be able to deliver those services nationally. This is an advantage of practicing as a coach, consultant or educator, because state licensing boards do not generally require licenses to deliver coaching, consulting or education services via a telehealth platform. Because of this lack of regulation, coaches, consultants and educators are free to practice across state lines.

The trick is staying within the coaching, consulting or education boundaries and not stepping over into the practice of a licensed profession. Our law firm can help you navigate these telemedicine practice laws, whether you practice as a licensed professional or unlicensed professional. Please contact us today with your questions, or, if you are starting your business as a health or wellness coach, check out our product page for legal documents to get you started.

 

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