In response to the pervasive use of telemedicine during the COVID-19 Pandemic, the Washington Medical Commission (“Commission”) has issued a new policy governing the practice of telemedicine by allopathic physicians and physician assistants in Washington State.  As of November 19, 2021, the new Telemedicine Policy (POL2021-02) (“Policy”) supersedes previously issued guidance, including the Commission’s 2014 Guidelines for Appropriate Use of Telemedicine (MD-2014-03) and the 2018 WMC Policy on Telemedicine and Continuity of Care (POL2018-01). The Policy reconciles past guidance into a single, easily digestible format, clarifies interpretive grey areas for providers, and encourages continuing medical education surrounding potential bias and use of certain health care technology applications in treating underrepresented populations. 

The new Policy defines “telemedicine” expansively to capture, and therefore govern, the broad swath of activities typically categorized as telemedicine. Specifically, “telemedicine” is defined as “a mode of delivering health care services using telecommunications technologies by a practitioner to a patient or to consult with another health care provider at a different physical location than the practitioner.” The Policy further specifies that this definition includes the three common categories of telemedicine: real-time interactive services, store-and-forward technologies, and remote monitoring of patients.  

The Commission uses the Policy as an opportunity to clarify when a Washington medical license is required for a practitioner to engage in telemedicine services in the State. In accordance with statutes and past guidance, the Commission restates its position that it deems the practice of medicine to occur at the patient’s location at the time of the physician-patient encounter¹; and, therefore, whenever a physician engages in telemedicine services with a patient located in Washington State, the physician must hold a valid Washington State medical license to lawfully provide such services. However, the Commission noted a few exceptions to the licensure requirement, including brief consultations between practitioners, when patients seek second opinions or consultations with out-of-state specialists which includes sending  medical records for their review/input, and temporary follow-up care by out-of-state physicians for patients located in Washington, with certain guardrails in place. The guidance thoughtfully considers the patients’ needs and access to care in balancing specific state licensing concerns. 

The Policy also offers detailed guidance to physicians providing medical services via telemedicine technologies on appropriate standards of care and professional ethics when providing such services. Consistent with past guidance, physicians utilizing telemedicine are held to the same standards of care and professional ethics as applicable to in-person care. Providers also must adhere to their scope of practice—including licensure, education, training, experience, and ability—when choosing which services to provide via telemedicine. The Commission further specifies that only the treating practitioner may determine if telemedicine is an appropriate mode of care, and, consequently, suggests that they will be exclusively liable for any substandard care or negative outcomes attributable to utilizing telehealth technologies. The Policy further outlines a variety of procedural requirements providers should meet when engaging in telemedicine services in the State. 

In issuing this Policy, the Commission provides rare, concrete guidance for providers to adhere to in structuring their telemedicine practices within Washington State. Rather than ignoring technological advances or leaving core practice questions unanswered, the Commission has built on its history of supporting telemedicine and paving the way for its continued utilization within the State via setting clear regulatory standards. Further, the policy offers best practice guidance for use of emerging technologies like artificial intelligence and specifically notes the risk of bias against underrepresented populations inherent in such tools. Washington State continues to be a leader in supporting the use and evolution of telehealth platforms and services for those who live in and visit Washington.

FOOTNOTE

¹  See R.C.W. 18.71.011 (defining the “practice of medicine” in Washington State)