Updated: Jan 25
In August 2019, a New Hampshire physician sent a letter to the New Hampshire Board of Medicine with a straightforward inquiry: “Is direct to patient, asynchronous teledermatology medically acceptable here in New Hampshire?” It’s a fair question and one, in varying forms, that is being asked across the country by the myriad companies and licensed physicians, pharmacies, and pharmacists providing telehealth care. With each state planting and replanting their own subjective regulatory flags, national telehealth providers are scrambling to understand when, where, and how telemedicine* can be delivered in each state.
With each state planting and replanting their own subjective regulatory flags, national telehealth providers are scrambling to understand when, where, and how telemedicine can be delivered in each state.
As telemedicine regulation evolves, the practice of telemedicine continues and, with it, disciplinary matters are cropping up around the country. So what are the reasons physicians are being disciplined for engaging in telemedicine? It’s a difficult question to answer because these matters are relatively rare, leaving little precedent and gaping unknowns as to the practical application of telemedicine regulations. The vast majority of medical board disciplinary cases are a product of traditional in-person care, criminal convictions, and substance abuse issues--meaning that it is uncommon to find a disciplinary matter that is related to telemedicine. A review of all publicly available online disciplinary proceedings in front of state medical boards from June 2019 to December 2019 revealed that less than 1% of these disciplinary matters involved the use of store-and-forward technology. With that said, telemedicine discipline is occurring in some states as medical boards take action. The disciplinary proceedings discussed below provide insight into how regulators are addressing telemedicine practice issues and specifically the use of store-and-forward/asynchronous technologies.
This article features three recent 2019 decisions in California, Texas, and Iowa where physicians were disciplined for telemedicine violations. For each of the following case studies (which are based on publicly available information), it appears that the physician relied solely on store-and-forward technology prior to writing the prescriptions. Unfortunately, the facts that led to the disciplinary complaints are somewhat vague leaving us to draw conclusions based on the alleged violations. As to the good doctor’s question, the New Hampshire Board of Medicine during a September 2019 Board meeting did not provide any substantive guidance and instead referred the physician to a recently passed 2019 statute; in essence, the Board was unwilling to issue an advisory opinion. The lack of precedential facts in these cases and boards’ unwillingness to provide advisory guidance continues to leave telemedicine providers in foggy regulatory waters with no lighthouse in sight.
FACTS: In 2014 and early 2015, a Medical Board of California investigator logged into the telehealth website www.kwikmed.com under fictitious names and answered a series of asynchronous online questions regarding medical data and history for two fake patients seeking prescriptions, respectively, for contraceptives and erectile dysfunction medications. Based solely on the store-and-forward questionnaire, Dr. Richard Holmes wrote prescriptions for the contraceptive ella® and the erectile dysfunction medication Viagra®. In 2017, the State of California brought a disciplinary action against Dr. Holmes’ physician license alleging gross negligence, repeated negligence, incompetence, and furnishing dangerous drugs without an examination. Based on the State of California’s complaint, Dr. Holmes appears to have had no synchronous (video or audio) interaction with the patient prior to writing the prescriptions.
LAW: The crux of all causes of action brought by the State against Dr. Holmes was a failure to meet the standard of care. For both prescriptions, California argued that Dr. Holmes failed to conduct a physical examination, which--according to the Complaint--was required prior to the prescription of these medications. In support of the accusations, California cited Section 2242 of the Code of Regulations, which states: “(a) No person or entity may prescribe, dispense, or furnish, or cause to be prescribed, dispensed, or furnished, dangerous drugs or dangerous devices, as defined in Section 4022, on the Internet for delivery to any person in this state, without an appropriate prior examination and medical indication, except as authorized by Section 2242.” In both cases, California argued that additional requirements were necessary to meet the standard of care including a pregnancy test for the Ella prescription and performing a genital examination for the Viagra prescription.
DISCIPLINE: Dr. Holmes ultimately surrendered his California license voluntarily pursuant to a Stipulated Surrender of License and Order dated February 8, 2019, and was fined $30,000. Subsequent to his license surrender, the California Board of Pharmacy concluded a separate disciplinary matter brought in January 2018 against the Kwikmed pharmacy, which presumably** filled prescriptions obtained on the website www.kwikmed.com, alleging the pharmacy had filled over 14,000 prescriptions that were “obtained over the internet, not issued pursuant to good faith prior examination, and were pursuant to prescriptions written by physicians not licensed in California to treat California patients.” Kwikmed pharmacy agreed to a Settlement on February 5, 2019 that included a $275,000 fine. Within a week of these related matters being resolved, a bill was introduced in the California legislature seeking to amend Section 2242 to clarify that synchronous interaction is not required to prescribe medication provided that the appropriate standard of care is met (Section 2242(a) reads, in part, "... An appropriate prior examination does not require a synchronous interaction between the patient and the licensee and can be achieved through the use of telehealth, including, but not limited to, a self-screening tool or a questionnaire, provided that the licensee complies with the appropriate standard of care.” Cal. Bus. and Prof. Code § 2242). The bill would eventually pass and become effective immediately in October 2019. NABP Solutions was unable to find any public record or statement by the bill’s author that would suggest the legislation was prompted by the outcomes of these two disciplinary matters. The bill author’s stated in a press release she was seeking to expand access to telemedicine:
“‘Birth control allows people to choose if and when to start a family and historically has afforded women more economic freedom,’ said [California] Assemblywoman [Cottie] Petrie-Norris (D-Laguna Beach) ‘It is paramount that women have access to the resources necessary to carefully plan a family as they see fit.’”
Regardless of the motivation for the bill’s filing, it is safe to conclude the newly revised regulation would have impacted Dr. Holmes’ and Kwikmed’s matters.
FACTS: On July 30, 2018, Dr. Aruna L. Yarrozu prescribed lidocaine cream to a patient via telemedicine. According to the Texas Medical Board Agreed Order, Dr. Yarrozu did not utilize synchronous audio or video to evaluate the patient. The Agreed Order also states that Dr. Yarrozu failed to contact the patient to discuss the risks and benefits of the topical medication prior to prescribing the drug. The presumption here is that Dr. Yarrozu’s patient engagement was limited to asynchronous store-and-forward, but this is not explicitly stated in the publicly available information online. We attempted to secure more i