The Practice of Medicine

 

Today, I want to help you decide how you're going to expand your practice or reevaluate how your practice is currently set up so that you can avoid committing crimes and going to jail. That may sound intense and scary, and while I do not mean to scare you, I do want you to know what your risks are. When you are sitting down to conduct your risk analysis, are you covering all your bases? Or, are you leaving areas open to potential illegalities?

You may have set up your practice based upon how others have done it, or you may have just done what you wanted in terms of setting up and expanding your practice. You have to be careful here. You need to know what the actual limitations and rules are so that you can work within them and even work within those areas that are not catching up to speed. When it comes to telemedicine specifically, the industry is far outpacing the regulators. In other words, they haven't made laws to catch up with the advancement of technology and the proliferation--especially in the last 16 months--of telemedicine.   

Since there is some ambiguity here, we need to start by defining what the practice of medicine is and discussing some coinciding terms.  This is especially important in light of our recent discussion on consulting and coaching. People who are considering becoming health coaches have to understand exactly what the practice of medicine is and how to define it in light of their scope. Last week, we discussed a health coach's scope, and I recommend you go back and look at that as well. But this week, we'll focus on the practice of medicine itself. We'll also look at the definition of telemedicine and where most people get into trouble when they go to practice across state lines.

What Counts as "The Practice of Medicine"?

Let's start by examining a couple of example states. In the state of Maryland, we are given two definitions of what it means to practice medicine. Firstly, it is defined as "to engage with or without compensation in medical diagnosis, healing, treatment, or surgery." Notice that it doesn't say anything about prescription drugs or conventional medicine; none of that is in Maryland's preliminary definition.

So many providers often misunderstand and tell me, "Well, I'm not going to be prescribing drugs, so I won't be practicing medicine."  This is not the same thing, as you can see by the definition, which doesn't mention prescription drugs at all. When we move on to Maryland's second definition, more light is shed on this issue:

"'Practice medicine' includes doing, undertaking, professing to do, and attempting any of the following: diagnosing healing, treating, preventing, prescribing for, or removing any physical, mental, or emotional ailment or supposed ailment of an individual." 

The definition goes even further to mention that this can be "by physical, mental, emotional, or other process that is exercised or invoked by the practitioner, the patient, or both; or appliance, test, drug, operation, or treatment." Here, Maryland provides an extremely inclusive definition of the practice of medicine. How it is actually interpreted and enforced by the Board of Medicine in Maryland is not our focus today, but you can see that it's a broadly worded statute. Note that this is a state statute and not a board rule or regulation, and Maryland is pretty broad compared to some other states. 

One big takeaway here is that you don't need to be paid for your service. In other words, if you do work for free, it still counts as practicing medicine, and you are held accountable.  Also, notice that this definition is not just prescription, not just tests, not just appliances or equipment-based treatments, but rather very open to interpretation. Other states' definitions also have similar language and are often worded vaguely, leaving it up to the medical board's interpretation to determine rules and outcomes. Even if the wording is not explicit in state statutes, you can still read the legislative intent and some of the surrounding notes and some of its decisions. Once you examine that, it's clear that the description is not just about prescription drugs or conventional care, like we have been taught for the last 50 years or so. What we're used to in the conventional world is not the only definition of medicine. 

Defining Telemedicine

We know what medicine is, but about telemedicine? While the definition of telemedicine may vary by state, it basically includes the same language of diagnosing, treating, curing, and preventing, but with the addition of using remote means. Typically, phone and fax are carved out of the definition of telemedicine. My interpretation is that they excluded those because they didn't want traditional brick-and-mortar practices to have to deal with telemedicine laws when they merely wanted to call a patient or fax records back and forth. Every state's definition of medicine with the addition of using remote means is similar and may just have slightly different wording. I will stay in Maryland for this next example and also go into North Carolina.

In Maryland, telehealth is defined as "a mode of delivering healthcare services through telecommunications by a healthcare practitioner to a patient at a different physical location than the healthcare practitioner. Telehealth includes synchronous and asynchronous interactions." Synchronous refers to real-time interactions. Asynchronous, often called "store and forward," is not done "live" or in real-time. This could be anything from portal messages to interpreting lab tests which may not be live interactions. Perhaps you send a message or forward the lab test results; this would be considered asynchronous.  Then there is the issue of audio-only calls that are not mentioned in Maryland's wording. However, some states are now including audio-only in their telemedicine definition. As I continue to mention, telemedicine laws, definitions, and licensure are ever-evolving. While Maryland, at least as of 2020, omits audio-only in its telehealth laws, make sure to be careful with your own state and continue to check back.

Now let's take a look at North Carolina by way of another example. In North Carolina, telemedicine is defined as "the practice of medicine using electronic communication, information technology, or other means between a licensee in one location and the patient in another location, with or without an intervening healthcare provider." Note that in North Carolina, telemedicine and telehealth are the same. Most states use these terms interchangeably. Where North Carolina uses "telemedicine" as its defined term, other states will call it "telehealth," but they're talking about the same thing. That can be a little bit frustrating and confusing for the layperson out there, but just check by simply Googling your state telemedicine laws, and you'll be able to read it word-for-word.

The Patient's Location Matters

Remember, with telemedicine, you are practicing where the patient is located. This has been especially important to keep in mind over this pandemic when many doctors are practicing across state lines without a license. With telemedicine in your own state, you are already licensed there. As long as you're following the standard of care, the rules around establishing care, and maintaining care virtually in your state, then there should be no issue. However, if you have an out-of-state patient and you are practicing without a license in that particular state, you are guilty of a felony. For example, in the state of Maryland, this conviction of practicing medicine without a license is subject to a fine of up to $10,000, or up to five years in prison, or both. And, you can be subject to a civil fine of up to $50,000 as well. So, it could cost you $60,000, years of your life, and will probably come with some license action in your home state, where you're actually licensed. This is why I tend to be a bit of a conservative voice on this front. I really don't want anybody who is listening to me or following me to be convicted of a felony.

Don't Throw it All Away

You already went to medical school and received your practitioner training, and you probably spent a good amount of money. Additionally, after that, you most likely spent time continuing your education and completing your residency or training program. Even if you started working at that point, you then probably took extra credits for functional/integrative or anti-aging medicine, and you also spent a bunch of money on that. You have already sacrificed so much time and money, and I get concerned that good-intentioned people could throw this all away because they're either unaware of the rules or they aren't taking the risks seriously. I don't want to see you doing that, which is why I strive to make you aware of the definitions and potential penalties to make a better-informed choice about your risk tolerance for your situation. Before you break the law and practice in a state where you are not licensed, consider other options to expand your practice and expand your reach inside your own home state.

 

If you have questions about the practice of medicine, inner-state medical licensing laws or compacts, whether you are an MD or a health coach or anyone in between, please reach out to us at Functional Lawyer.  Follow, subscribe, and share this with your friends who may need this information as well.

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