This October 18, 2014 posting addresses the proposed telemedicine rule’s requirement that a physician-patient relationship be established prior to providing medical services via telemedicine.
Physician-patient relationship required before providing medical care via telemedicine.
Proposed rule 653-13.11(7) Physician-patient relationship
Proposed rule 653-13.11(20) Circumstances when a physician may not personally examine a patient
Summary. Physician licensees who use telemedicine must establish a valid physician-patient relationship with the person who receives telemedicine services. The proposed rule defines the traditional context in which a physician-patient relationship begins, i.e., an individual seeks care, the physician agrees to undertake the individual’s care, the individual agrees to be treated by that physician. The rule then goes on to describe circumstances relevant to telemedicine practice under which a valid physician-patient relationship can be established, including –
- An in-person medical interview and a physical examination (when medically necessary), where an in-person encounter would otherwise be required in the provision of the same service not delivered via telemedicine;
- Consultation with another physician licensee (or other health care provider) who has an established relationship with the patient and the licensee (or other health care provider) who has an established relationship with the patient agrees to participate in, or supervise, the patient;s care; or
- A physician-patient relationship established in accordance with evidence-based telemedicine practice guidelines established by nationally recognized medical specialty organizations addressing the clinical and technological aspects of telemedicine.
IBM rule 13.11(20) details several circumstances under which a licensee who has not personally interviewed, examined, and diagnosed a patient may proceed to treat that patient, including prescribing medications on a short-term basis for a new patient scheduled to be seen or call situations or emergency situations.
Considerations. One of the more difficult issues in regulating telemedicine is the nature and extent of the patient-physician relationship established between the telemedicine physician and the patient receiving medical services via telemedicine. AMA Ethical Opinion 10.015 explains that it is within the physician-patient relationship that “a physician is ethically required to use sound medical judgment, holding the best interests of the patient as paramount.” E-10.015 explains that a patient-physician relationship exists “when a physician serves a patient’s medical needs, generally by mutual consent between the physician and the patient.”
The AMA, however, has concerns that the traditional way in which the physician-patient relationship is formed is too ambiguous in the telemedicine context. The IBM’s proposal, first requiring a physician-patient relationship before medical services are provided by the telemedicine physician, and then offering ways in which a physician using telemedicine could show that a physician-patient relationship has been established, reflects AMA telemedicine policy H-480.946 adopted at the June 2014 House of Delegates. Even so, physicians examining this provision of the rule might ask whether the outlined mechanisms for establishing a physician-patient relationship are reasonable and feasible within the telemedicine context.
AMA’s policy and the IBM’s rule proposal differ in language in one important respect. The IBM rule says a telemedicine physician could establish a physician-patient relationship through “an in-person medical interview and physical exam” when medically necessary where an in-person encounter would otherwise be required in the provision of the same service not delivered via telemedicine. The AMA’s policy references “a face-to-face examination.” In the Council on Medical Services report supporting this AMA policy (CMS Rep. 7-A-14), the Council expresses its belief that a valid patient-physician relationship is established through “at a minimum a face-to-face examination” if otherwise required in the provision of the same service not delivered via telemedicine; the Council goes on to clarify that the face-to-face encounter could occur in person or virtually through real-time audio and video technology. The AMA policy, on this point, seems to offer greater flexibility more in keeping with telemedicine practice.
It is fair to ask in the context of this IBM proposed disciplinary standard whether the options set forth in this rule are feasible and/or reasonable in each of the contexts in which medical services may be delivered via telemedicine as defined. For instance, does a physician who assumes “supervision” of a patient’s care so that the telemedicine physician can provide medical services to that patient take on new liability risks in agreeing to do so? Could the rule’s requirements for identification (r.653-13.1(6)) and informed consent (r. 653-13.11(10)) be sufficient, in and of themselves, to establish a patient-physician relationship between the telemedicine physician and the patient?
Acknowledging that the physician-patient relationship is fundamental to medical practice and ethics, is it necessary, nonetheless, to adopt this disciplinary standard in light of the proposed telemedicine rule’s statement that physicians using telemedicine shall be held to the same standards of care and professional ethics as a physician using traditional in-person medical care? For now, the IBM is tracking what professional medicine has suggested. More may come on this issue as the AMA’s Council on Ethical and Judicial Affairs (CEJA) continues its examination of ethical challenges in telemedicine.
The October 21, 2014 post will address the proposed rule’s requirements that a medical history be provided and a physical exam be performed.
See our page dedicated to Telemedicine for all related articles, including our most current post.