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64 AJN â–¼ September 2016 â–¼ Vol. 116, No. 9 ajnonline.com

Legal Considerations in Telehealth
and Telemedicine

The delivery of nursing services through the
Internet or any other electronic channels con-
stitutes the practice of nursing.

—National Council of State
Boards of Nursing, 2014

Technology and science change faster than the legal system. Technologic advances have per-mitted nurses to monitor patients remotely
and interact with medical devices. Telehealth (also
called telemedicine—more on that below) is the de-
livery of health care remotely, in some cases virtually,
through video or audio technology. It can address
access and provider-shortage issues by permitting
long-distance health care with patients at one site
and providers at another. Telehealth can take many
forms, such as the remote monitoring of medical de-
vices; wearable tracking devices; video monitoring
(both live and stored); nursing call centers; telephone
triage; and the use of computers, tablets, cell phones,
or other modes of electronic communication between
provider and patient. About 10 million patients a
year receive telemedicine services in the United States
(that number includes mental health services).1, 2

As telehealth modalities become integrated into
practice, however, issues of licensure, privacy, secu-
rity, confidentiality, scope of practice, and definitions
of the practice of nursing all need to be considered.
When is the provider–patient relationship created?
Which state is the nurse required to be licensed in if
a patient is in one and the nurse is in another? Which
state’s scope of practice determines her or his role?

DEFINITIONS
Although the terms telemedicine and telehealth are of-
ten used interchangeably, telemedicine applies more
narrowly to clinical services and telehealth more
broadly to general health care, such as patient educa-
tion and monitoring.3 Telehealth is provided in several
modalities4:
• real-time, or synchronous, communication

such as telephone, Webcam, or audio or video
links

• the storage and forwarding of information, such
as diagnostic-imaging data

• remote patient monitoring, such as at-home vital
sign measurement or blood glucose level testing

• mHealth (mobile health, also written m-health),
which can include the use of wearable devices,
cell phones, or smartphone applications
The definitions of telehealth or telemedicine vary

somewhat from organization to organization:
• The Department of Health and Human Services

defines telehealth as the “use of technology to de-
liver health care, health information or health edu-
cation at a distance.”5

• The National Council of State Boards of Nursing
(NCSBN) says it’s “the practice of nursing deliv-
ered through various telecommunications tech-
nologies, including high speed Internet, wireless,
satellite and televideo communications.” The
NCSBN further states that “[t]he nurse engages in
the practice of nursing by interacting with a client
at a remote site to electronically receive the client’s
health status, initiate and transmit therapeutic in-
terventions and regimens, and monitor and record
the client’s response and nursing care outcomes.”6

• The American Telemedicine Association’s defini-
tion of telemedicine is “the use of medical infor-
mation exchanged from one site to another via
electronic communications to improve a patient’s
clinical health status.”7

• The Federation of State Medical Boards defines
telemedicine as “the practice of medicine using
electronic communications, information technol-
ogy or other means between a licensee in one lo-
cation and a patient in another location with or
without an intervening health care provider.”8

LEGAL STANDARDS OF PRACTICE
When engaging in telemedicine, it is important for
a nurse to understand legal and regulatory require-
ments. Nurses must still adhere to traditional clini-
cal standards of care and practice within the scope
authorized by law. It is particularly challenging in
telehealth to establish and meet evidence-based stan-
dards. Krupinski and Bernard have noted,9

As the technology changes, it is incumbent on
the telehealth community to verify the reliability

LEGAL CLINIC

[email protected] AJN ▼ September 2016 ▼ Vol. 116, No. 9 65

By Edie Brous, JD, MS, MPH, RN

and validity of these technologies before use
in routine care, and to establish standards and
practice guidelines for their use. However, this
takes time, effort, and usually funds, and it is
often argued that rigorous evaluation studies
are done just as the technology becomes ob-
solete.

Telehealth best practices and guidelines are still be-
ing developed and determined by regulatory agencies,
but the legal system lags behind technology. Laws and
regulations must, of necessity, be modified by slower
systems and are always playing catch-up. The Tri-
Council for Nursing (an alliance of the American As-
sociation of Colleges of Nursing, the American Nurses
Association [ANA], the American Organization of
Nurse Executives, and the National League for Nurs-
ing) and the NCSBN have noted, “With the advent
of the information age and digital era, nursing reg-
ulation must address the unique needs of interstate
practice enabled by telehealth technologies.”10 It is
important to adhere to the laws as they exist in the
moment while keeping abreast of changes. This is
an evolving area of the law, as the Center for Con-
nected Health Policy reports: “In the 2015 legisla-
tive session, [42] states have introduced over 200
telehealth-related pieces of legislation.”11

WHERE DOES TELEHEALTH REALLY LIVE?
Nurses must hold licenses in the state in which they
reside but also must be licensed or allowed to prac-
tice in the state in which their patients are located.4 It
is important to know each state’s requirements. Pro-
viding care that exceeds a state’s scope-of-practice
limits is considered practicing without a license and
can expose the nurse to both civil and criminal liabil-
ity, as well as licensure discipline.

In determining whether a nurse can legally deliver
telehealth services to patients in a different state, the
question is not where the patient is geographically lo-
cated, but where the nurse is practicing: is a telehealth
nurse practicing in the state from which services are
provided or in the state where they are received? Opin-
ions vary. The ANA believes that the nurse is practic-
ing in the state where the nurse is located,12 but the
position of the NCSBN is that the nurse is practicing
where the patient is located.13 And some states require
providers using telemedicine technology across state
lines to have a valid license in the state where the pa-
tient is located,3 whereas other states’ nurse practice
acts are silent on the subject.

In actuality, the scope-of-practice and nursing reg-
ulations that apply to the telehealth nurse–patient
encounter are based on the laws in place where the
patient is located. Additionally, there is no federal

licensure for physicians, only state licensure, which
means that nurses can only take orders from physi-
cians licensed in the state where the patient is located,
not where the nurse is located.8

Telehealth nurses should understand that malprac-
tice lawsuits that arise in the course of a telehealth
nurse–patient relationship will be brought in the state
where the patient is located. The nurse would there-
fore be forced to defend the lawsuit in a state she or
he was never physically in during the relationship. It
is also important for the nurse to determine—before
engaging in telehealth—whether her or his malprac-
tice insurance policy covers telehealth practice.

THE NURSING LICENSURE COMPACT
These restrictions also apply to nurses covered under
the Nursing Licensure Compact (NLC). The NLC is
an interstate mutual recognition model of licensure
that permits nurses who are licensed in one compact-
member state to practice in another compact-member
state. Currently, 25 states are members of the NLC.
Nurses are granted multistate licensure privileges, but
they still must follow the laws and regulations of the
state in which they are practicing. Because scope-of-
practice limitations vary by state, it is critical for a
nurse to know the regulations of any state in which
she or he practices. Nurses who act outside of their
legal scope, or in violation of nurse practice acts or
other regulations, expose themselves to licensure dis-
cipline. The nurse can both lose the multistate privi-
lege and be disciplined by the states in which she or
he holds a license.

Nurses who practice telehealth with patients
throughout the country must be legally authorized to
deliver those services in all jurisdictions. They need

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66 AJN â–¼ September 2016 â–¼ Vol. 116, No. 9 ajnonline.com

LEGAL CLINIC

to have multistate privileges and valid individual li-
censure in all states and territories that do not cur-
rently participate in the NLC. To encourage more
state participation in the NLC, the NCSBN signifi-
cantly revised the original compact, adopting the new
version in May 2015, when it also approved model
legislation for states to adopt a licensure compact for
advanced practice nurses.14

A state-by-state analysis of physician standards
and licensure noted that “[p]rofessional licensure
portability and practice standards for providers us-
ing telemedicine are some of the biggest challenges
for health care providers considering telemedicine
adoption.”15 Similarly, the ANA stated,16

As advocates for the profession and health care
consumers/patients, nurses should thought-
fully consider how their practice and priorities
might be affected by these different license por-
tability models. It is up to nurses to engage in
the effort to ensure that changes in licensure
policy reflect the profession’s needs, values,
and commitment to health care consumer/
patient safety.

PRIVAC Y AND CONFIDENTIALITY
Nurses have a duty to safeguard patient information
and prevent unauthorized access to medical records.
When engaging in telehealth, nurses must meet medi-
cal information and patient privacy requirements of
the Health Insurance Portability and Accountability
Act (HIPAA), as well as state privacy laws, organiza-
tional policies, and ethical standards. Devices that
contain protected health information (PHI) must
meet security requirements, and wireless communi-
cations must have cybersecurity protection. Like pa-
per documents, electronic files must be stored in a
manner that ensures privacy and confidentiality. Au-
dio and video recordings are susceptible to hacking.
All providers should be educated on how to prevent
data breaches when communicating information and
transmitting images or audio or video files electroni-
cally, and on how to respond when they do occur.

Providers can have a false sense of security in us-
ing mHealth apps, too. A recent report noted that
the majority of mobile health apps contain critical se-
curity vulnerabilities. Some of the vulnerabilities have
patient safety implications because they “could result
in application code tampering, reverse-engineering,
privacy violations, and data theft. In addition to sen-
sitive data being taken, the vulnerabilities could lead
to a health app being reprogrammed to deliver a le-
thal dose of medication.”17 Patient satisfaction is
also at risk, as another report indicates: “80% of
consumers indicated they would change providers if

they knew the apps they were using were not secure.
And 82% of consumers would change providers if
they knew alternative apps offered by similar service
providers were more secure.”18

To adequately meet HIPAA standards, any elec-
tronic systems that transmit or store electronic in-
formation about patients must be operated and
monitored by computer technicians with expertise in
security measures. Providers should also understand
that PHI includes more than medical information.
Anything that can identify a patient can be considered
PHI, including e-mail addresses, birth dates, telephone
numbers, Internet protocol addresses, and so on. State
privacy laws can be more stringent and spe cifically
address medical devices and telehealth apps. The Na-
tional Telehealth Policy Resource Center provides
state-specific information on laws, regulations, re-
imbursement policies, and pending legislation.19

BARRIERS
A 2014 national survey conducted by the Robert
Graham Center for Policy Studies in Family Medicine
and Primary Care (created by the American Academy
of Family Physicians) found that, although most fam-
ily physicians believed that telehealth can improve
access to and continuity in care, only 15% reported
actually having used telehealth in the previous year.
Barriers cited for not using it were a lack of training,
inadequate mechanisms for obtaining reimbursement,
technology costs, and liability issues.20 This is consis-
tent with what the Institute of Medicine (IOM) iden-
tifies as the “seven deadly barriers” to the “use of
telemedicine modalities”2:
• money
• regulations
• hype
• adoption
• technology
• evidence
• success

Several examples of such barriers in action can be
found in a project implemented at the Henry Ford
Health System.21 Home care nurses identified patients
at risk for medication noncompliance. Funding was
obtained for a one-year trial program in which tele-
health medication dispensers were installed in the pa-
tients’ homes and caregivers were trained to fill the
dispensers. The dispensers uploaded daily activity and
communicated power failures or missed doses over
landlines. The dispensers sent messages to patients,
reminding them to do such things as measure their
blood pressure or change fentanyl patches.

The project successfully reduced hospitalizations
and readmissions related to medication noncompli-
ance. It prevented missed doses and adverse drug

[email protected] AJN ▼ September 2016 ▼ Vol. 116, No. 9 67

responses related to overdosage when patients forgot
they had already taken their medications. However,
despite achieving a 96% compliance rate using these
telehealth medication dispensers, Henry Ford was un-
able to expand the program. Many patients could not
access the system because it required a landline. The
cost of monitoring, $65 per month, was not covered
by insurance and many of the participants could not
afford to assume the burden (Mary Hagen, e-home
care supervisor, telephone interview, January 5, 2016).

Ultimately, the program was compromised by in-
adequate technology, a lack of insurance coverage,
and an inability to obtain funding.

CONCLUSION
In its landmark publication, The Future of Nursing:
Leading Change, Advancing Health, the IOM noted
that “[t]here is perhaps no greater opportunity to
transform practice than through technology.”22 With
the growth in remote patient-monitoring and biomet-
rics technology, nursing practice will continue to be
transformed. It will be essential for nurses to be aware
of the legal and regulatory implications of this evolv-
ing change in nursing practice. â–¼

Edie Brous is a nurse and attorney in New York City and the
coordinator of Legal Clinic: [email protected] The au-
thor has disclosed no potential conflicts of interest, financial or
otherwise.

REFERENCES
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