Mid-Atlantic Health Law TOPICS

On November 30, 2009, the Secretary of the Maryland Department of Health and Mental Hygiene adopted regulations for the practice of telemedicine in Maryland. Among other things, the regulations require a physician to be fully licensed as a Maryland physician if the physician practicing telemedicine, or if the patient receiving services, is located in Maryland.

The regulations became effective on December 28, 2009. Similar telemedicine regulations have been proposed in the past, most recently in 2007, but this is the first time that telemedicine regulations have been adopted in Maryland. It is interesting to note that according to staff at the Maryland Board of Physicians, the newly adopted regulations requiring licensure are merely "codifying" the previously unwritten policy of the Board of Physicians.

Maryland now joins approximately thirty other states that have telemedicine regulations or policies requiring full licensure or a special license for physicians who provide services via distant communications systems.

A. What is Telemedicine?

The stated purpose of the regulations is to govern the practice of medicine when the practice incorporates telecommunications systems as an adjunct to, or as replacement of, traditional face-to-face patient visits. Telemedicine is defined as the "practice of medicine from a distance in which intervention and treatment decisions and recommendations are based on clinical data, documents, and information transmitted through telecommunications systems."

The regulations specifically exclude from their scope the use of an electronic means by a treating physician licensed in Maryland who is seeking "consultative services" of another licensed health care provider with respect to an individual patient. The regulations define consultative service as a "service provided by a physician for the sole purpose of offering an expert opinion or advising the treating physician about an individual patient."

B. Websites

The regulations also create specific requirements for the practice of telemedicine via a website. Such websites are now required to have certain disclosures including the licensure status and license numbers of the physicians practicing through the website, HMO, health insurer, or physician ownership of the website, financial interest in the products or services advertised or offered on the site, and the privacy practices used by the physicians. Additionally, fees for services offered through a website are required to be disclosed prior to the patient incurring any charges.

The owners of a website used for tele-medicine must establish policies relating to how the physician will verify the identification of the individual transmitting a communication; how the physician will prevent access to data by unauthorized persons through password protection, encryption, or other means; and how soon an individual can expect a response from the physician to questions or other requests included in transmissions.

C. Lack of In-Person Interaction

Before providing treatment or prescribing medication via telemedicine, the regulations require a physician to perform an evaluation adequate to establish diagnoses and identify underlying conditions or contraindications to recommended treatment options. If the physician-patient relationship does not include prior in-person, face-to-face interaction with a patient, the physician must incorporate real-time communications to allow a free exchange of information between the patient and the physician performing the patient evaluation.

The regulations allow for "interpretative services" to be provided without a patient evaluation mentioned above. Interpretative services are defined as "official readings of images, tracings, or specimens through a telemedicine link." However, physicians providing interpretative services should ensure that no clinically significant loss of data occurred through the transmission of the data.

D. Other Considerations

A physician providing telemedicine services is also required to obtain patient consent, maintain adequate medical records, and follow Maryland and federal laws regarding patient confidentiality.

The regulations also require the Maryland Board of Physicians to use the same standards in evaluating and investigating a complaint, and disciplining a physician who practices telemedicine, as it would use for a physician who does not use telemedicine technology.