One of the biggest difficulties for mobile and digital health companies (or health systems) focused on telemedicine is that they're usually attempting to provide a national service, but the regulations they must follow are determined on the state level -- for the most part by state medical boards. Recently, the Federation of State Medical Boards, an advisory group that issues guidance documents for state boards, released a policy framework for telemedicine offered up as a resource to states.

According to Jonathan Linkous, CEO of the American Telemedicine Association, it's hard to say at this point how much of an impact the guidance will have -- any number of states might adopt the guidelines either wholly or in part. American Well, a video-based telemedicine startup, applauded the document in a press release and encouraged state medical boards to put the policy guidance into place.

“This policy is a bold step towards a reality where all patients can access quality care irrespective of time, place and location,” Roy Schoenberg, MD, CEO of American Well, said in the statement. “Now that the Federation has done its job as leaders, we look to states to do the same -- embrace this model policy, and thereby ensure that only safe, secure and appropriate care can be delivered through today’s telehealth technologies.”

But Linkous was less enthusiastic. He said the provisions in the document are more progressive than those of some states, but less progressive than others -- and overall less progressive than ATA would prefer.

"It’s good that there is an effort nationally for the state medical boards to recognize that telemedicine is here," Linkous told MobiHealthNews. "Over 10 million patients got service from telemedicine last year. Many of their lives were saved. So it’s about time that state medical boards start recognizing telemedicine as part of how we deliver care. The way some states may implement is still a possible cause for concern."

One major concern of ATA -- which sent the Federation a list of recommendations prior to publication of the guidance -- is that it seems to exclude voice-only telephone and online care from the definition of telemedicine, focusing only on video visits, a sentiment echoed by American Well's release.

"Generally, telemedicine is not an audio-only, telephone conversation, e-mail/instant messaging conversation, or fax," the document reads. "It typically involves the application of secure video conferencing or store and forward technology to provide support or healthcare delivery by replicating the interaction of a traditional encounter in-person between a provider and a patient."

In fact, a number of existing telemedicine companies, like Teladoc and Zipnosis, either use the telephone or provide care entirely through non-video online interactions. Linkous worries that constraining the definition so narrowly both hurts innovation and hurts doctors who just like to use the phone. 

"There’s a number of companies providing web-based consultation services," he said. "Quite a few of those are based on the telephone, because a patient either doesn’t want to use video or can’t for whatever reason, plus there’s individual doctors who use the telephone to consult. So that’s one of the areas where we hope they’ll move forward."

The ATA is also concerned that the new policy document requires informed consent forms for telemedicine, something that is not currently the norm and, Linkous worries, could intimidate potential users and is "a legalistic term that implies telemedicine isn’t as good as being in the office, that there’s dangers."

Finally, a provision that telemedicine doctors be licensed in the state their patient is located does largely line up with the law today, but is too broad reaching and fails to take into account notable exceptions, according to the ATA. For instance, the federal government currently allows military doctors to practice anywhere. Additionally the guidance as written would prevent nearby states with a lot of through-traffic, like New York and New Jersey, from making mutual reciprocal licensing arrangements.

Although these seem like minor disputes, they can have very real consequences, as Dr Anne DeJong discovered last year when, while working for telemedicine company Consult-a-Doctor, she was sanctioned by the Idaho State Medical Board and hit with $10,000 in fines for prescribing an antibiotic over the phone.

"There are states and individual members of some medical boards that are very anti-telemedicine," Linkous said. "And they might be for a variety of reasons. ... Some of them have been accused of just not wanting the competition from other states. They want to protect their own financial interest in the market. Some say they don’t want it because it might somehow jeopardize the ability of the medical board to collect money and exert authority in its own state. Some are legitimately concerned about telemedicine. You have to weed through that. There’s some concern that some elements of [the new Federation guidelines] might give cause to some medical boards to make it worse for telemedicine. On the other hand, there are state boards who are so anti-telemedicine that any step like this might be a step in the right direction."