HOUSE BILL NO. 399
INTRODUCED BY M. GUGGENHEIM, C. CHRISTIAENS, J. COBB, T. DELL, R. ERICKSON,
G. GUTSCHE, J. HURDLE, B. KASTEN, B. KRENZLER, C. SQUIRES, C. TUSS, C. WILLIAMS,
T. HAGENER
AN ACT PROHIBITING THE PRACTICE OF TELEMEDICINE WITHOUT A TELEMEDICINE CERTIFICATE ISSUED BY THE BOARD OF MEDICAL EXAMINERS; PROVIDING LEGISLATIVE FINDINGS; PROVIDING A DEFINITION AND EXCEPTIONS; PROVIDING QUALIFICATIONS FOR A TELEMEDICINE CERTIFICATE; SPECIFYING POWERS AND DUTIES OF THE BOARD; PROVIDING FOR DISCIPLINARY ACTION BY THE BOARD; ESTABLISHING JURISDICTION FOR THE MEDICAL LEGAL PANEL AND THE COURTS; AMENDING SECTION 37-3-301, MCA; AND PROVIDING EFFECTIVE DATES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Legislative findings. The Montana legislature previously found, in 37-3-101, that the practice of medicine in Montana is a privilege, not a natural right, and that the regulation of the practice of medicine is necessary to ensure the health, happiness, safety, and welfare of the people of Montana. The legislature now finds that because of technological advances and changing patterns of medical practice, medicine is increasingly being practiced by electronic means across state lines. Although access to technological advances is in the public interest, the legislature also finds that regulation of the practice of medicine across state lines is necessary to protect the public against the unprofessional, improper, unauthorized, and unqualified practice of medicine. Accordingly, the legislature finds that physicians outside the boundaries of Montana who enter the state by electronic or other technological means to practice medicine for compensation on patients inside Montana are seeking the benefit and protection of the laws of Montana and are subject to the licensure and regulatory requirements provided in [sections 1 through 9].
Section 2. Definition -- scope of practice allowed by telemedicine certificate. (1) As used in [sections 1 through 9] and 37-3-301, "telemedicine" means the practice of medicine, as defined in 37-3-102, by a physician located outside the state who performs an evaluative or therapeutic act relating to the treatment or correction of a patient's physical or mental condition, ailment, disease, injury, or infirmity and who transmits that evaluative or therapeutic act into Montana through any means, method, device, or instrumentality under the following conditions:
(a) The information or opinion is provided for compensation or with the expectation of compensation.
(b) The physician does not limit the physician's services to an occasional case.
(c) The physician has an established or regularly used connection with the state, including but not limited to:
(i) an office or another place for the reception of a transmission from the physician;
(ii) a contractual relationship with a person or entity in Montana related to the physician's practice of medicine; or
(iii) privileges in a Montana hospital or another Montana health care facility, as defined in 50-5-101.
(2) As used in [sections 1 through 9] and 37-3-301, telemedicine does not mean:
(a) an act or practice that is exempt from licensure under 37-3-103;
(b) an informal consultation, made without compensation or expectation of compensation, between an out-of-state physician and a physician or other health care provider located in Montana;
(c) the transfer of patient records, independent of any other medical service and without compensation;
(d) communication about a Montana patient with the patient's physician or other health care provider who practices in Montana, in lieu of direct communication with the Montana patient or the patient's legal representative;
(e) diagnosis of a medical condition by a physician located outside the state, based upon an x-ray, cardiogram, pap smear, or other specimen sent for evaluation to the physician outside the state by a health care provider in Montana; or
(f) a communication from a physician located outside Montana to a patient in Montana in collaboration with a physician or other health care provider licensed to practice medicine in Montana.
Section 3. Practice of telemedicine prohibited without certificate -- scope of practice limitations -- violations and penalty. (1) A physician may not practice telemedicine in this state without a telemedicine certificate issued pursuant to [sections 1 through 9] and 37-3-301.
(2) A telemedicine certificate authorizes an out-of-state physician to practice telemedicine only with respect to the specialty in which the physician is board-certified or meets the current requirements to take the examination to become board-certified and on which the physician bases the physician's application for a telemedicine certificate pursuant to [section 5(2)].
(3) A telemedicine certificate authorizes an out-of-state physician to practice only telemedicine. A telemedicine certificate does not authorize the physician to engage in the practice of medicine while physically present within the state.
(4) A physician who practices telemedicine in this state without a telemedicine certificate issued pursuant to [sections 1 through 9] and 37-3-301, in violation of the terms or conditions of that certificate, in violation of the scope of practice allowed by the certificate, or without a physician's certificate of licensure issued pursuant to 37-3-301(2)(a), is guilty of a misdemeanor and on conviction shall be sentenced as provided in 37-3-325.
Section 4. Application for telemedicine certificate. (1) A person desiring a telemedicine certificate shall apply to the department and verify the application by oath, in a form prescribed by the board.
(2) The application must be accompanied by:
(a) a certificate fee prescribed by board rule; and
(b) documents required by the board that establish that the applicant possesses the qualifications prescribed by [sections 1 through 9] and the rules of the board. The burden of proof is on the applicant, but the department may make an independent investigation to determine whether the applicant possesses the requisite qualifications.
(3) The application must include a clear statement that the applicant consents to the jurisdiction of the state as specified in [section 9].
(4) The applicant shall provide to the board authorizations necessary for the release of records and other information required by the board.
Section 5. Qualifications for telemedicine certificate -- basis for denial. The board may not grant a telemedicine certificate to a physician unless the physician has established under oath that the physician:
(1) has a full, active, unrestricted certificate to practice medicine in another state or territory of the United States or the District of Columbia;
(2) is board-certified or meets the current requirements to take the examination to become board-certified in a medical specialty pursuant to the standards of, and approved by, the American board of medical specialties or the American osteopathic association bureau of osteopathic specialists;
(3) has no history of disciplinary action or limitation of any kind imposed by a state or federal agency in a jurisdiction where the physician is or has ever been licensed to practice medicine;
(4) is not the subject of a pending investigation by a state medical board or another state or federal agency;
(5) has no history of conviction of a crime related to the physician's practice of medicine;
(6) has submitted proof of current malpractice or professional negligence insurance coverage in the amount to be set by the rules of the board;
(7) has not paid, or had paid on the physician's behalf, on more than three claims of professional malpractice or negligence within the 5 years preceding the physician's application for a telemedicine certificate;
(8) has identified an agent for service of process in Montana who is registered with the secretary of state and the board and who may be a physician certified to practice medicine in this state;
(9) has paid an application fee in an amount set by the rules of the board; and
(10) has submitted as a part of the application form a sworn statement attesting that the physician has read, understands, and agrees to abide by Title 37, chapters 1 and 3, and the administrative rules governing the practice of medicine in Montana.
Section 6. Certificate renewal -- fee. (1) A physician certified to practice telemedicine shall renew the telemedicine certificate every 2 years.
(2) The physician shall complete and return an application for renewal provided by the board by a date established by board rule.
(3) The physician shall pay an application renewal fee in an amount established by board rule.
Section 7. Reasons for denial of certificate -- alternative route to licensed practice. (1) The board may deny an application for a telemedicine certificate if the applicant:
(a) fails to demonstrate that the applicant possesses the qualifications for a certificate required by [sections 1 through 9] and the rules of the board;
(b) fails to pay a required fee;
(c) does not possess the qualifications or character required by this chapter; or
(d) has committed unprofessional conduct.
(2) A physician who does not meet the qualifications for a telemedicine certificate provided in [section 5] may apply for a physician's license in order to practice medicine in Montana.
Section 8. Discipline of physician with telemedicine certificate. A physician granted a telemedicine certificate may be subject to investigation and discipline on the grounds that the physician has:
(1) committed unprofessional conduct, as described in 37-1-316 or in a board rule; or
(2) failed to:
(a) maintain the qualifications provided in [section 5] or in a board rule;
(b) maintain complete, legible patient records in written or readily retrievable electronic form;
(c) make complete, legible patient records available to the board during an investigation or disciplinary proceeding concerning the physician's practice of telemedicine; or
(d) appear and testify at a deposition within the state in the course of an investigation or disciplinary proceeding conducted under Montana law that concerns the physician's practice of telemedicine.
Section 9. Consent to jurisdiction. A physician granted a telemedicine certificate shall, pursuant to [section 4], consent to the jurisdiction of:
(1) the courts of Montana for the purpose of civil actions, including but not limited to tort, contract, and equitable actions, related to the physician's practice of telemedicine;
(2) the courts of Montana for the purpose of criminal actions related to the physician's practice of telemedicine;
(3) the board for the purposes of licensing and disciplinary action by the board; and
(4) the Montana medical legal panel for matters within the panel's jurisdiction, as provided in Title 27, chapter 6.
Section 10. Section 37-3-301, MCA, is amended to read:
"37-3-301. License required -- kinds of certificates. (1) Before being issued a license, an applicant may not engage in the practice of medicine in this state.
(2) The department may issue three four forms of certificates of licensure under the board's seal: the physician's
certificate, the restricted certificate, and the temporary certificate, and the telemedicine certificate issued in accordance with
[sections 1 through 9]. The physician's certificate and the restricted certificate must be signed by the president, but the
temporary certificate may be signed by any board member. The board shall decide which certificate to issue. These
certificates must be designated as:
(a) physician's certificate, which is subject to renewable registration in accordance with department rules;
(b) restricted certificate; and
(c) temporary certificate, which is subject to specifications and limitations imposed by the board; and
(d) telemedicine certificate."
Section 11. Codification instruction. [Sections 1 through 9] are intended to be codified as an integral part of Title 37, chapter 3, part 3, and the provisions of Title 37, chapter 3, part 3, apply to [sections 1 through 9].
Section 12. Effective dates. (1) Except as provided in subsection (2), [this act] is effective October 1, 2000.
(2) [Sections 1 through 9] are effective on passage and approval for the purpose of proposing rules that will be adopted on or after October 1, 2000, and are effective for all other purposes on October 1, 2000.
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Latest Version of HB 399 (HB0399.ENR)
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