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Telemedicine Review – Nutrition Services Online

Wednesday, August 29, 2018   (0 Comments)
Posted by: Adrienne J. Hersh, J.D., ICS Legal Counsel
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Telemedicine Review – Nutrition Services Online 

As the health care market experiences an increasing demand for patient convenience, so grows the interest in health care services via telemedicine.  Telemedicine under Illinois law means “rendering written or oral opinions concerning diagnosis or treatment of a patient in Illinois by a person in a different location than the patient …by telephonic, electronic, or other means of communication.”  This could include physician-patient interaction by electronic mail, texting, video or telephone.  Some services are, of course, better suited than others for this type of health care delivery.

The ICS has been asked whether Illinois licensed physicians may provide professional nutritional services via the Internet or other electronic means (e.g., telephone or texting).  This article assumes that the physician is providing professional diagnosis and treatment to patients via telemedicine; i.e., the physician’s activity goes beyond providing general nutritional or health information and crosses the line to care and treatment based on the patient’s diagnosis, as assessed by the physician.  (See section below regarding providing general nutritional information regarding supplements versus medical nutrition designed to treat a patient’s specific ailments.) 

Unfortunately, no one answer fits every telemedicine situation.  It does seem clear that Illinois licensed physicians may use electronic means to provide professional nutrition services where the physician is treating established patients located in Illinois, so long as usual standards of care are followed.  However, it might be risky or impractical for Illinois licensed doctors to treat new patients located in Illinois, or patients who are located outside of lllinois, for reasons explained below. 

The ICS notes that “telemedicine” also includes services provided electronically by physicians licensed in other states to patients located in Illinois.  (For information concerning those issues, including the referral by Illinois licensed physicians of radiological studies to out-of-state doctors and the potential for the referring Illinois doctor to be charged with aiding and abetting the unlicensed practice of medicine, see [2011 article].)  However, the focus of this article is on Illinois licensed physicians providing professional nutrition service by telemedicine to patients who are located in and outside of Illinois.   

The Law of the State Where the Patient is Located Controls
The regulation of physicians and the practice of medicine are left to each state; therefore, each state has its own law regarding licensure and other requirements for the practice of telemedicine.  State regulators consider the practice to occur where the patient is located.  For an Illinois physician who wants to determine whether he or she may provide telemedicine services to any patient, the first question is where the patient is located, because the law of the state where the patient is located will control.  Engaging in telemedicine with patients via electronic devices and reaching patients in multiple states (or even out of the country) is the equivalent of practicing in each state where patients are sitting at their devices.  

Therefore, an Illinois doctor who uses electronic means to diagnose or treat patients in other states must comply with each distinct law in each state where a patient is located. States range from having no telemedicine law at all to requiring full licensure to practice telemedicine.  The complexity of learning and complying with 50 different laws is obvious. 

First, many states, including Illinois, do not permit any type of medical practice on patients located in their state unless the physician is fully licensed in that state.  Even for states that permit limited telemedicine practice, either with a limited license or no license in that state, the physician will need to determine the location of each patient before establishing a physician-patient relationship and will need to fully comply with that state’s law.  In many states, compliance will require full licensure.  

Additionally, even in states that permit telemedicine by remote physicians, the physician will still have to comply with the appropriate standard of care for the services being provided.  It is untested whether a physician meets the standard of care by offering medical nutrition services to a new patient without an in-person encounter and without performing diagnostic testing.  Eventually the court cases and laws will catch up and provide more guidance, but, at this time, telemedicine is still a new and evolving delivery system that could not have been imagined at the time the laws were written.  Laws have not yet been fully tested, nor have many court opinions been issued to clarify questions about this new form of health care delivery.

Finally, even with a license for various states, chiropractic scope of practice varies and may not include medical nutrition.  Chiropractic physicians would have to check the scope for each state in which a patient is located.

Clearly, the cumbersome nature of these variances in laws would make a practice across multiple state lines impractical at best, and probably economically unsustainable.

Illinois Physicians and In-State Internet Practice   
How can Illinois physicians use the Internet in their practices?  Clearly, they may communicate with established Illinois patients via e-mail, as these communications would be similar to those contained in telephone calls.  Many Illinois practices currently use sophisticated e-mail systems that permit patients to directly conduct e-mail conversations with their doctors regarding medical care.  In these situations, the Internet is used as an adjunct to, rather than a substitute for, traditional, in-person care.  The physician is not operating in a vacuum, having the benefit of the patient’s history and a prior physical exam.  

However, we do not yet know how Illinois regulators would view e-mail practice involving patients with whom the doctor does not have an established physician-patient relationship, even if the patient resides in Illinois.  The ICS is aware that a number of health plans and health facilities (such as hospitals) operate call-in centers where nurses speak with individuals generally regarding a health care issue, or “screen” for suspected issues, and then recommend or refer the individual to a physician for additional evaluation.   The nurse is presumably not diagnosing or treating the individual in those cases.  The ICS speculates that regulators would permit a licensed physician to do the same thing. However, if the physician then crosses the line into actual diagnosis and treatment, regulators might view that conduct differently. The problem in this case would not be the medium of the Internet, but rather that standard of care does not permit rendering medical advice to strangers and may not permit diagnosing and treating without an in-person encounter in certain circumstances.  Physicians have argued that they would be able to take a history online and conceivably treat a patient appropriately based on his or her history, but the law is still grappling with this new form of patient encounter.  Although the legislature has not considered nutrition services specifically, it does not appear ready to accept anything less than the usual standard of care for any form of telemedicine at this time.

Regardless of whether you use technology to communicate with existing patients or with new patients, the ICS recommends you check with your professional liability insurer to determine whether you are covered for those activities.  No policy will cover you for activities that are considered the unlicensed practice of medicine.  You should also confirm whether you are covered, even if you are properly licensed in Illinois or elsewhere for the telemedicine practice you conduct.

Nutritional Counseling and Selling of Supplements Online
A logical extension of providing nutrition services via telemedicine is whether physicians may provide nutritional supplements and counseling via the Internet.  Under the federal Dietary Supplement Health and Education Act, the manufacturer is responsible for ensuring the safety of the supplements, but there are no specific requirements for the seller of supplements, other than marketing them in a truthful and non-misleading fashion.  Sellers may provide general information about the products they distribute.  In this situation, a physician does not technically have more restrictions than a layperson, if the physician is merely selling the supplements online.  However, if the physician also provides individual advice in response to questions as to how to diagnose or cure a particular person’s condition, the physician is probably crossing the line into unlicensed practice of nutritional counseling and/or telemedicine in the patient-purchaser’s state, depending on the law in that state.  The temptation to treat individual ailments may be greater in the case of a physician than a layperson, and the physician may be subject to greater scrutiny by authorities for providing personalized advice.

Although though the law always lags behind technology, there is no doubt that telemedicine has to potential to increase access to patient care.  Due to the variations in state laws, the federal government ultimately may have to take over areas that were historically left to the states, in order to promote uniformity and make it possible for more patients to avail themselves of the care of more practitioners.  In the meantime, the ICS will continue to be your accurate source of information in this rapidly changing environment. 


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