Telemedicine-Related Offenses

The practice of consulting with patients remotely via the internet (referred to as telemedicine) has gained wider use in recent years as a convenient and affordable way to administer healthcare to patients. During the COVID pandemic of 2020-21, telemedicine (also sometimes called “telehealth”) became absolutely essential, both to protect patients from exposure during lockdowns and to free up in-person resources to treat COVID patients. Its benefits and affordability have been so widely touted that many insurance carriers now waive copayments for telehealth visits so their insureds can consult with a doctor, nurse, or licensed therapist online for free.

That being said, telemedicine also opens up the potential for professional license complications for physicians, nurses, therapists, and other healthcare professionals who might use it. Without the ability to examine the patient in person, for example, it becomes easier to misdiagnose someone, prescribe the wrong medicines, etc. Because telemedicine platforms also enable health professionals to treat patients across state lines, sometimes state licensing regulations get confusing, and a doctor may inadvertently “treat” a patient they're not licensed to treat. And of course, online platforms provide different opportunities for misconduct among licensed health professionals—as well as the possibility of false accusations of misconduct. As a result, some doctors, nurses, nurse practitioners, and therapists are inadvertently finding themselves in hot water with their state licensing boards over the use of telemedicine—some completely unaware that they were putting their license in danger of being suspended or revoked.

If you are a medical or mental health professional, you've worked hard to earn your professional license, and now your entire livelihood hinges on it. To have that license imperiled by a misunderstanding, mistake, or false allegation related to telemedicine could throw your entire world into chaos.

How do you respond, and what steps can you take to ensure your career stays intact?

Attorney Joseph D. Lento has years of experience and an excellent track record helping health professionals in New Jersey and New York who are facing the possible loss of their license. The Lento Law Firm has compiled the following critical information to help you be informed about the potential licensing issues surrounding telemedicine and what you can do to protect your career.

Types of Professional License Issues that Can Arise with the Use of Telemedicine

The first and most important question to tackle is: What are the potential pitfalls in using telemedicine to treat patients? Specifically, what aspects of telemedicine could present a risk to your professional license? If you know these pitfalls, you can often take steps early on to avoid them. Let's look at some of the common complaints filed due to telemedicine that could put your license at risk.

Discrepancies around your license to practice

Perhaps the biggest and most complicated pitfall doctors and other practitioners need to look out for with telemedicine is the danger of operating outside the scope of your professional license. The fact that telemedicine platforms are Internet-based makes it very easy to treat people across state lines—and every state has different rules and regulations regarding whom their licensed health professionals can treat and how telemedicine can be used. This makes the entire situation very confusing.

For example, some states only require you to have a license to practice in the state of origin for the telehealth site (presumably, also the state where you live). But other states also require that if you treat any patient living in that state, you must specifically be licensed in that state, as well. And there are still a handful of states that don't have provisions for telemedicine at all! Many states issued temporary emergency waivers during the pandemic to suspend their regulations, making it easier for physicians and counselors to treat people across state lines; but not every state has done so, and this makes the mix even more confusing. Thus, if you're licensed to practice medicine in New Jersey, you can easily treat anyone via telemedicine within the state—but if you treat someone in a state that requires you to be licensed within that state, and you aren't duly licensed…this could be grounds for disciplinary action.

Violations of patient privacy

While the internet makes remote communications easier, cybersecurity is a constant issue. Telemedicine platforms make every effort to protect patients' confidential information in compliance with HIPAA requirements. However, that doesn't mean individual practitioners can't mistakenly share or mishandle a patient's information. For instance, if you're a licensed therapist doing a session online and a family member walks into your home office without your knowledge and shows up onscreen behind you, the patient could accuse you of violating their confidentiality. So despite the safeguards in place, there is always a risk of exposure—and with it, a risk of being accused of violating patient privacy, whether or not it actually happened.

Medical mistakes

One thing about telemedicine is that patients may never see the same doctor twice—which means there are many different physicians making notes in the patient's file. Inaccuracies in these notes can lead to medical mistakes like misdiagnosis or inaccurate prescriptions, which increases the risk that you could be accused of a medical mistake. In some cases, this could lead to a malpractice lawsuit, but in others, it could be interpreted by your licensing board as gross neglect or incompetence, putting your license at risk.

Substance Abuse

Video communications are convenient, but not foolproof. It can be easy to misinterpret someone's words and behavior as something that it is not. Showing up to your practice while under the influence of alcohol or drugs is an almost surefire way to have your license suspended even under normal conditions. However, if you show up on a telehealth call and it appears to the patient that your speech is slurred, your eyes are glazed, you are distracted, or your behavior seems otherwise unusual, they may interpret this as you being under the influence while treating them—even if it isn't so. If they file a complaint with your state licensing board, it could trigger an investigation.

Other common misconduct allegations

Many potential threats to your license are the same when treating someone remotely as treating them in person. Let's look at a few possible complaints that could threaten your license:

• Fraud. Common examples include upcoding (i.e., manipulating insurance codes to get paid more for certain procedures), overbilling, billing for services you didn't perform, etc.
• Sexual misconduct. While telemedicine provides a barrier against allegations of physically abusing or harassing a patient, you could still be accused of sexual harassment online via inappropriate conversations or behavior.
• Patient abuse or neglect. Telemedicine still makes it possible to verbally abuse a patient or fail to give them proper treatment, just as in the “real world.” A telemedicine patient can file a similar complaint.
• Mishandling of medications. Prescribing medications irresponsibly via a telemedicine platform could also affect your license.

Am I guaranteed to lose my license over a telemedicine offense?

Not necessarily. In many cases, your state licensing board may opt for a lesser penalty that allows you to keep your license to practice. They will weigh the circumstances, the evidence, and your response to the complaint in making their decision. Having a professional license attorney can also make a huge difference in the outcome of your case.

Here some examples of possible lesser disciplinary actions:

• Suspending your license. Your license may be suspended for a time, rather than revoked.
• Restrictions on your license. You may be prohibited from certain activities normally within the scope of your license—for example, telehealth appointments.
• Fines or other monetary penalties.
• Conditions imposed on your license. The board may allow you to keep your license on the condition that you complete certain requirements—for example, mandatory treatment if you are struggling with substance abuse, or continuing education.
• Probation. Your activities will be monitored by the board, and/or you may be allowed to practice under supervision.
• Reprimand or censure. The board may simply issue a verbal or written reprimand of your misconduct.

Could a lesser penalty damage my career even if I get to keep my license?

Yes, it could. Anything other than a verbal warning typically shows up in your file as a matter of public record, and any potential employer or patient can look you up to see if you have any adverse actions against you. This could cause some people not to want to work with you or hire you. The best-case scenario when facing possible disciplinary action is to have the complaint dismissed. A skilled professional license attorney can improve your chances of that happening.

I've been notified of a complaint against me for telemedicine-related offenses. What will happen next?

The exact process may differ from state to state, but you can basically expect the licensing board to take the following steps (or something similar):

• Investigation. The board will investigate the complaint to determine whether the allegations have merit. The investigation may include the subpoena of records (including from the telemedicine site), questioning witnesses, and asking you to provide a written response to the complaint. In some cases, the matter can be resolved at this stage without further action.
• Inquiry. If the board wants more information than you provided, or if they aren't satisfied with the investigation itself, they may ask you to appear at an inquiry to answer questions personally.
• Consent order. A consent order is a legally binding agreement between the state, the board, and you, in which you admit to wrongdoing and agree to submit to certain recommended disciplinary actions. If the board finds ample evidence to support the complaint, they may offer to negotiate a consent order with you so you can both avoid a formal hearing.
• Formal hearing. If there is no agreed-upon consent order, the next step is to call a formal hearing. Depending on your state's regulations and board policies, this hearing may be held in front of the board directly or in front of and Administrative Law Judge in court.
• Final determination and action. After the hearing, the board or judge will make a final determination as to your culpability and decide on appropriate disciplinary action.
• Appeal. You have the right to appeal an adverse decision to the appellate courts in your state. This may be a good option if you have reason to believe the board acted arbitrarily or committed serious procedural errors that affected the outcome.

Why do I need an attorney to help me deal with allegations of misconduct via telemedicine? Can't I resolve the matter myself?

You can always represent your own interests in matters pertaining to your state licensing board—but when your professional license is at stake, it's highly risky to do so. Here's why:

• A license investigation is a legal matter. Your professional license represents a legal agreement with the state, and any violation is considered a breach of that agreement, making it a legal matter. Unless you're a lawyer, you are probably out of your depth dealing with this matter from a legal standpoint, not to mention a lack of legal negotiating skills. Having skilled legal counsel helps ensure you don't lose due to a lack of understanding of the law.
• You are starting out at a place of disadvantage. Despite any effort of the board to be fair, the fact is they are more experienced with disciplinary matters than you are—and you are the one being accused. This puts you at a disadvantage by default. Having an attorney helps to level the playing field.
• The licensing board is not on your side. The board's purpose is not to protect you from complaints, but to protect the public from bad actors—and once a complaint is made against you, you are being viewed as a potential bad actor. The board isn't looking to exonerate you, but to verify whether the complaints are true—and they have no problem stripping you of your license if they find a reason to do so. Attempting to resolve the matter casually or informally could seriously backfire. It's much better to hire skilled legal counsel to make sure your rights are protected.

What can a professional license defense attorney do to help me?

Hiring an experienced license defense attorney gives you a fighting chance at keeping your license compared to “going it alone” in front of the board. This is especially true with telemedicine-related allegations, which can be complicated. A good attorney will:

• Review the complaint and provide context as to the possible impact on your license;
• Help you develop an effective strategy for responding to the complaint;
• Procure evidence to refute the complaint and support your position;
• Interface with the board on your behalf;
• Negotiate for the best possible outcome at multiple points during the process; and
• Provide a robust defense for you if the matter goes to a formal hearing.

Do I still need an attorney if the alleged offenses are minor?

It's a mistake to treat any allegation as “minor.” Even if the offense doesn't justify having your license suspended or revoked, nearly any action the board takes against you will become a matter of public record and potentially hurt your reputation with hospitals, clinics, patients, and other prospective employers. In addition, sometimes even offenses you deem as minor can have aggravating circumstances that prompt the board to invoke more severe penalties—including suspending or revoking your license. The best way to ensure a “minor” offense carries “minor” penalties is to hire a professional license attorney to defend you—and it also gives you the best chance of having the complaint dismissed, so it doesn't show up on your public record.

How will a disciplinary investigation affect my practice? Should I change my approach to marketing or recruiting for my practice?

Unless your license has already been revoked, suspended, or temporarily suspended pending a hearing, you are still a licensed health professional, and as such, you should feel free to continue advertising, marketing, or recruiting new employees as you normally would. The investigation may indeed resolve without any interruption to your practice, and you don't want to experience an unnecessary lull in your business in the meantime. Continue functioning as normal unless your attorney tells you to prepare for the worst-case scenario.

Do I have to reveal to my patients, colleagues, employees, or employer that I am under investigation for a telemedicine offense?

Typically, no—at least not legally. If you work at a facility or practice, there may be wording in your contract that requires you to disclose any investigation into your license, but otherwise, you are not required to divulge that information to anyone until such time as you can no longer practice.

If the word does get out about your investigation and someone asks you about it, the best approach is to acknowledge the investigation without offering too many details. Resist the urge to tell “your side of the story” or speak ill of the complainant, as these tactics often backfire. Instead, simply tell the person you are cooperating with the investigation, and you plan to continue providing excellent care to your patients unless the licensing board tells you otherwise.

I've just received notice of a complaint against my license. At what point in the process should I hire an attorney?

Typically, the sooner, the better. If you wait until there is a formal hearing (as some health professionals do), you'll be entering the process on the defensive. An attorney can find multiple opportunities throughout the investigation to negotiate for better terms, a lesser disciplinary action, or dismissal of the complaint. Hiring an attorney early in the process increases the odds that the matter will never make it to the hearing stage.

Telemedicine is a useful tool in the modern age to provide affordable care to more people. Don't allow a misunderstanding, misstep, or temporary lapse in judgment made through remote healthcare to ruin your career. If you are licensed in New Jersey or New York, attorney Joseph D. Lento can help. He is highly knowledgeable in matters of licensed health practices (including telemedicine) and knows how to fight to protect both your license and your livelihood. Contact the Lento Law Firm at (888) 535-3686 today to discuss your case and your options.