Telemedicine – Tennessee
*The current environment is making establishing a telemedicine practice, or at least telemedicine capability, imperative for almost every medical practice. If a physician practice has not implemented this aspect of their practice, they most surely are exploring it now.
Below is a quick primer on how Tennessee treats telemedicine. It does not substitute for the advice of a good lawyer. There are hoops to jump through, to ensure state and federal compliance, and to ensure the services are paid by public and private insurers. Some of those hoops are moving or changing given covid-19, and probably will remain changed after the pandemic subsides, so it is important to pay attention when veering out into this relatively new practice avenue.
“Telemedicine is the practice of medicine using electronic communication, information technology or other means, between a licensee in one location and a patient in another location. Telemedicine is not an audio only telephone conversation, email/instant messaging conversation or fax. It typically involves the application of secure video conferencing or store-and-forward to provide or support healthcare delivery by replicating the interaction of a traditional encounter between a provider and a patient.”
The general rule is that the physician providing services must be licensed in the state the patient is in. If a physician is licensed in Tennessee and providing services via electronic means to a patient in Tennessee, a Tennessee license should generally cover that transaction.
Obviously, lots of Tennessee physicians see patients from Southern Kentucky and Northern Alabama, and from other communities across state lines. One should become familiar with the laws of those states before treating someone across state lines. In Tennessee, as an emergency measure through May 18, 2020, the governor of Tennessee issued an order permitting out of state health care professionals to temporarily practice in Tennessee through telemedicine with respect to Tennessee patients if the scope of practice of applicable professional license would authorize professional to diagnose and treat humans. Other states likely have similar orders.
While Tennessee once granted a telemedicine license, a standard license is now required.
Notably, Tennessee’s Chronic Pain Guidelines do not allow for treatment of chronic pain by telemedicine.
Prescribing via telemedicine should follow the normal physician-patient practice. One should, though, become familiar with federal DEA requirements related to e-prescribing, which, in some instances, may require face-to-face interactions at certain intervals.
Standards of Care
The physician-patient relationship does not start until the physician undertakes to diagnose or treat the patient. This would seem to allow a physician to “meet” a patient first over a secure platform and decline to undertake care. Largely, the physician-patient relationship will proceed in the telemedicine context as in the normal course. Standards of care are expressly the same by law.
The use of a facilitator is, obviously, unique to telemedicine. It is required in certain instances by Tennessee law. Additionally, there are documentation requirements when conducting visits by telemedicine. Certain EMR systems, if linked with the telemedicine system, likely will make sure required documentation components are not missed (e.g., documenting the electronic means used for the visit). But there will be different documentation requirements when doing telemedicine.
While the individual provider agreements may change the relationship slightly, generally, by law, insurers should reimburse for telehealth services the same as for in-person visits.  One should check with payors before undertaking to start seeing large swaths of patients by telehealth, to ensure payment is consistent with in-office treatment and no additional action is required. This may require review of your provider agreement.
Mid-Levels: Supervising mid-levels who see patients under a physician’s supervision by telehealth proceeds, generally, the same as normal. One should be mindful of the requirements of reviewing charts and visiting with the mid-level, which continue even in the telehealth realm.
Policies: It may make sense in certain practices to distill policies and protocols regarding telehealth to writing. As mentioned above, there are additional hoops, and everyone should be on the same page in getting through those hoops.
Insurance: One should consult with their professional liability policy to ensure that providing telehealth services still falls within the coverage of the policy.
Platform: There are a number of platforms that can be used. Of course, the security of the platform is a necessary part of the analysis. The TMA has a platform.
*Again, this very simple overview does not substitute for talking with a health care lawyer. There are layers to these laws and regulations, plus the overlay of the federal scheme on the state laws, combined with the individual contractual obligations under the provider agreements. Telemedicine was coming. It just may just be coming a little more quickly for some medical practices because of the present public health crisis.
By: Chris J. Tardio
 Tenn. R. & Reg. 0880-02-.16(1)(g).
p. 9: “Chronic pain shall not be treated by the use of controlled substances through telemedicine.”
 Tenn. Code Ann. § 63-1-155.
 Tenn. Code Ann. § 63-1-155; 56-7-1002.
 Tenn. R. & Reg. § 0880-02-16.
 Tenn. R. & Reg. § 0880-02-16.
 Tenn. Code Ann. § 56-7-1002.