Medical Practice at a Distance May Be Illegal IV: ME, AK

Continued from: Medical Practice at a Distance May Be Illegal III

Maine:

When I called the Medical Board for the State of Maine I explained that a patient planning to travel during the summer might be in the state at the time of the next appointment, and I asked whether the Board might deem that I would be practicing without a license if I were to a) have a telephone conversation or b) conduct a medication management session via Internet teleconference with the patient. Both of the representatives with whom I spoke referred me to the applicable statutes which of course indicate that one must be licensed by the state in order to legally practice medicine there. However, I detected at least some suggestion that the Board might tend to adopt a lenient view of such practices. I was also told that Maine has not entered into reciprocity agreements with any other state, including New Hampshire and Canada.

Alaska:

(No Sarah Palin jokes, please.) I started with a phone call, but the representative asked me to switch to email. I indicated that a patient might work on a fishing boat harbored in Alaska during the time of the next expected monthly contact. I asked whether the Board might deem that I would be practicing without a license if I were to a) have a telephone conversation or b) conduct a medication management session via Internet teleconference with the patient.

Perhaps the most interesting aspect of the response was the suggestion that if the contact occurred while the boat was in waters beyond the 3 mile limit, Alaska would have no jurisdiction. This might solve the problem with (I count) 21 states. Of course the physician has no way of knowing exactly where the patient is, much less exactly how far from the coast of a given state, and neither the patient nor I have any idea whether the boat will have a broadband connection.

I wonder too about jurisdiction at anchor or a dock. Would the state of VA, for example, claim medical jurisdiction over a German physician attending to a French patient on an Italian cruise ship anchored in Hampton Roads? And is the 3 mile rule universal, or does it vary from state to state?

In the end the Board's representative told me, "if the patient is only here temporarily..., you’re fine." Alaska takes first place for most rational, informative, helpful and reasonable response thus far. So if you plan to boycott AZ this summer because of the immigration law, switch your itinerary to AK and need to talk to your physician, remember that he may not have to say, "Sorry, but I'm not licensed there. You'll have to find a physician who holds an AK license."

A good bet: Send Your Patients to Michigan

DEA Cracks Down On Safe and Efficient Prescribing

A couple weeks ago, after I faxed a prescription refill to a Fred Meyer pharmacy near my office, a pharmacist there telephoned me. She explained that an inspector from the Washington State Board of Pharmacy had instructed the pharmacy to stop accepting  prescriptions for controlled substances with "electronic" signatures, citing DEA regulations. 

I had heard this reference to electronic signatures before and inquired at the Board of Pharmacy where a representative assured me that since I had written the signature on my prescriptions by hand, using a stylus, the Board would not consider it to be electronic. However, when I contacted the inspector, she indicated that since I had not used chemical ink from a pen applied to paper, but instead used a stylus and digital ink on a tablet computer, my signature would now be considered electronic. Never mind that the prescription was sent via fax to the pharmacy, so the pharmacist could not see the original paper or feel for the indentation made by the pen. Presumably the fact that the signature was identical to prior signatures gave it away. (Funny. I would have thought a signature that looked different from a former signature might raise suspicion.)

So at a time when the President encourages eprescribing (where there is no signature at all), at a time when we hear that regulators may permit physicians to order even controlled substances via eprescribing, and at a time when Washington statutes will soon require physicians to use special paper forms for prescriptions (but not when the prescription is faxed), authorities are cracking down on arguably safer and more efficient methods. Now to order a prescription I must print it on paper (wasting trees), sign it with a pen (not one obtained from a pharmaceutical representative of course) with chemical ink, and only then might I scan it with a fax machine to send it electronically to the pharmacy.

But I push back. So I have instituted a policy that I will no longer fax prescriptions to the Fred Meyer pharmacy in question. Rather, after printing and signing the prescription, I will hand it to the patient. Which means the patient must be in the office. If the patient needs to renew between visits they must use a different pharmacy that still accepts "electronic" signatures.

Unfortunately it gets worse: For years I have intentionally omitted my DEA number from prescriptions to prevent patients from using it to forge prescriptions. Instead I provided it by telephone directly to the pharmacist. Now, however, I understand from pharmacists that authorities are cracking down on this practice as well, and have admonished pharmacies not to accept prescriptions for controlled substances unless the DEA number appears thereon.

We can expect to have the DEA to thank for a spike in drug-related crimes and deaths, at least until we can eliminate written or printed prescriptions altogether.

Get This Doc Out of the Pharmacy Loop

• Patient leaves request for refill with pharmacy.
• Pharmacy faxes me request for refill authorization.
• Patient goes to pharmacy expecting to pick refill which is not there.
• Patient leaves message on my voice mail: "Where's my refill!?"
• I retrieve voice mail.
• I call pharmacy: a) I did not receive refill request or b) Pharmacy did not send refill request
• Pharmacy faxes refill request.
• I fax refill or order via eprescribing service.

 I suggested a solution to tech support at the eprescribing service I have been using, allscripts.com: Give the patient limited access to and control over the refill process. Instead of calling the pharmacy the patient would access her account at the eprescribing Web site. She would click on the prescription she wanted to refill and indicate the name of the pharmacy she wanted to use. My eprescibing service alerts me to the request. I access the Web site, check the patient's name, the drug, last date filled, etc. With a click I authorize the refill, and the pharmacy receives the order. The system alerts the patient who can check the status of the whole process at any time, and may opt for email notification from the pharmacy when the prescription has been prepared for pick up. The system could even alert the patient if there is a problem, like the medication is not in stock. The patient can then select a different pharmacy.

What do you think?

Medical Practice at a Distance May Be Illegal III

Only a couple of developments since I posted Medical Practice at a Distance May Be Illegal II:

State of MI

When a patient told me he planned to travel in Michigan this summer (I don't hold a medical license in that state.) I called the MI medical licensing board. When I asked whether the State of Michigan might consider me to be practicing without a license if I talked to the patient on the telephone or used video conferencing, I asked me to write a letter of inquiry. I am still procrastinating, but will post when I receive a response.

Federation of State Medical Boards

If any organization exists that might advocate for sanity in state laws regulating physician contact with patients in states where the physician does not hold a license, it must be this one. After receiving no response to several emails I was directed to their PR person, Drew Carlson. In a telephone conversation I posed the question to him of whether the FSMB has taken a position on this matter. Three weeks have past with no further response despite at least one reminder. Perhaps FSMB does not consider this an important matter.

Continued in: Medical Practice at a Distance May Be Illegal IV: AK, ME

Who Can Be a Psychologist?

In their article, “An Empirical Survey of Psychological Testing and the Use of the Term Psychological: Turf Battles or Clinical Necessity?” (Dattilio, Frank M.; Tresco, Katy E.; Siegel, Alex Professional Psychology: Research and Practice. 2007 Dec Vol 38(6) 682-689) the authors provide ample evidence to support their argument that state laws attempting to restrict use of the terms “psychology, ” “psychologist,” and “psychological” confuse more than clarify and have proved to be of little benefit to professionals or consumers. The legislatures were correct in attempting to protect the public from individuals claiming to have qualifications they lack. However, laws aimed at preventing fraudulent use of these terms by unqualified professionals have not prevented confusion in the minds of consumers, who regularly confuse psychologist with psychiatrist, and psychologist with psychotherapist of any type.

Many consumers do not appreciate the differences among so-called “mental health professionals” such as psychiatrists, counselors, psychotherapists, psychoanalysts, and psychologists. Statutes restricting use of terms related to psychology accomplish little or nothing to address this problem. The fact that some of these designations overlap increases the confusion: A psychoanalyst might also be a psychologist, a psychiatrist, or a social worker. Even professionals may wrongly assume that a PhD following the name of a professional implies that professional must be a psychologist.

Each of the terms protected under the statutes poses a different problem and calls for its own solution.

Psychology:

Comparison of the terms “psychology” and “psychiatry” helps clarify the problem. Psychiatry is a profession, a medical specialty encompassing the diagnosis and treatment of mental disorders in humans. In contrast, psychology is a science within the broader field of biology; in fact it is one of several sciences that inform the practice of psychiatry. Psychology encompasses the study of normal, as well as pathological, behavior, and it encompasses the study of behavior and functioning of non-human, as well as human, animals. Psychology per se is not a profession at all. Consider common uses of the term: Psychology Today, popular psychology, developmental psychology, The Online Journal of Sport Psychology, psychology 101, psychology department, evolutionary psychology, social psychology, political psychology, and others. Legislation probably cannot eliminate other uses of the term.

Psychologist:

The problem with efforts to restrict use of this term to licensed professionals are implicit from the discussion above and from the legitimate use of the term by non-licensed professionals to identify their professions. Not only do school psychologists and industrial psychologists identify themselves as such legitimately, but also scientists who study animal behavior and academics who teach but do not diagnose or treat and thus have no need or qualification for a license. The definition of psychologist should be “one who studies psychology” not “one who practices psychology.”

Psychological (test):

The authors’ focus on psychological testing legitimately arises from the fact that such formal assessment is a major role of psychologists. Psychological treatment (psychotherapy), however, is probably at least as central to the practice of psychology. Most of the same arguments could be made in an illegitimate attempt to prevent professionals who do not hold licenses as psychologists from claiming to provide psychotherapy services. As with “psychology” other common uses of the term “psychological” further blur the boundaries of acceptable use: psychological thriller, psychological aspects, psychological operation, psychological theory, psychological warfare, ad infinitum. The title of a catalog on my desk reads, “The Psychological Corporation.”

The problems with restriction of use of this term in the context of formal assessment arise partly from the lack of a universally accepted operational definition of “psychological testing,” and perhaps of psychological evaluation. The MMPI and the Millon, among others, would seem to be correctly classified as psychological tests regardless of the credentials of the individual who administers the test or interprets the data, but the Draw a Clock test, and the Mini Mental Status Exam would not. The authors also refer to “psychodiagnostic testing,” but do not indicate whether they believe the term should be considered synonymous with “psychological testing.” If any and all measures, instruments, tests, profiles, surveys, symptom inventories, and scales are included, there is no basis for restriction. If only a few, narrowly defined instruments are covered, the validity of the restriction increases, but its usefulness decreases.

The determination of which professional is qualified to administer a given test should depend on training and experience, not on their professional identity. Statutory restriction of the use of the term “psychological testing,” to be feasible, requires an adequate definition. I face a dilemma in completing an application asking whether I perform “psychological testing” as part of a psychiatric forensic examination. I routinely administer the MMPI, but the scoring is performed via computer program by Dr. Butcher. To me the MMPI is clearly a psychological test, but if I answer yes, I risk prosecution for violating Washington law. Conspicuously absent from the discussion, particularly with regard to testing, is any reference to the profession of psychiatry. Attempts to protect the consumer from fraud are legitimate regardless of any assumptions about pecking order. If a social worker cannot legally claim to provide psychological testing a psychiatrist should not be able to either. Efforts to protect the consumer should be limited to restriction of availability of test materials to those qualified to administer them.

The solution is to protect only the term “clinical psychology,” a term that clearly refers to a profession that addresses only humans, their evaluation, and sometimes, if present, treatment of pathological conditions.

•    Laws should not limit use of the term “psychology” at all.
•    Restriction of the term psychologist should be limited to the term “clinical psychologist” and then only when the term is used in an attempt to falsely hold oneself out as a clinical psychologist.
•    Until or unless we can arrive at general agreement on the scope of the term “psychological testing” no statute should limit its use.

Individuals who should be allowed to identify themselves as psychologists include school and industrial psychologists, professors of psychology and those who study animal behavior.