8.3 Telehealth Law for Dentists: New Patients, Consent, and Security

Definitions

B&P § 2290.5(a) defines telehealth as delivering health care services and public health through information and communication technology to facilitate diagnosis, consultation, treatment, education, care management, and self-management.

Because care is delivered where the patient is, a dentist treating a patient located in California through telehealth must hold a California license. Telehealth does not expand scope: it does not authorize any service or setting not otherwise allowed by law (§ 2290.5(e)). All laws on professional responsibility and standards of practice still apply (§ 2290.5(g)).

Accepting a new patient through telehealth (K1171)

The Dental Practice Act's patient-of-record rule still controls: before treatment, the dentist must have examined the patient, completed and evaluated the medical and dental history, diagnosed the conditions, and written a plan (B&P § 1684.5(b)). Telehealth can supply the information a dentist needs to do that:

• RDAEFs, RDHs, and RDHAPs may decide which radiographs to take on a patient the dentist has not yet examined, so that the dentist can complete a comprehensive diagnosis and treatment plan through telehealth (§§ 1684.5(a)(2), 1753.55, 1910.5, 1926.05).
• In public-health settings such as schools, Head Start, and community clinics, those auxiliaries may also place interim therapeutic restorations after the dentist diagnoses and directs it, communicating by telehealth (the "virtual dental home" model).
• When care happens away from the dentist's office, the dentist must give the patient written notice that it was provided at the dentist's direction, with the dentist's contact information, and may supervise no more than five such auxiliaries at once (§ 1684.5(c)–(d)).

Orthodontics by telehealth

Before the initial diagnosis and correction of malpositions or the first orthodontic appliance, the treating dentist must perform the § 1684.5(b) examination and review the patient's most recent radiographs or equivalent bone imaging, ordering new images if appropriate (§ 1680(ah)). A remote aligner model that begins treatment from selfies alone violates this rule.

Prescribing

Remote prescribing is judged by the same standard of care as in person. Prescribing dangerous drugs over the internet without an appropriate prior examination and medical indication violates § 2242.1, which the Dental Practice Act makes unprofessional conduct for dentists (§ 1680(af)). Controlled substances also carry the CURES and federal requirements in Chapter 9.

Consent (K1172)

§ 2290.5(b): before delivering care through telehealth, the provider who starts it must:

1. Inform the patient that telehealth will be used.
2. Obtain verbal or written consent to telehealth as an acceptable way to receive care.
3. Document the consent.

The patient keeps the right to switch to in-person care during the course of treatment (§ 2290.5(c)). Failing to comply is unprofessional conduct (§ 2290.5(d)).

Telehealth consent is in addition to informed consent for the treatment itself. A good telehealth consent also explains the technology's limits: an exam by video cannot detect everything an in-person exam can. It should also cover privacy risks, the backup plan if the connection fails, and what happens in an emergency.

Security (K1173)

• Privacy laws apply unchanged: § 2290.5(f) says all laws on the confidentiality of health information and patients' rights to their information apply to telehealth. That includes the CMIA, HIPAA, and patient access rules.
• Use a HIPAA-compliant platform with a business associate agreement. Federal enforcement leniency for consumer video apps during COVID-19 ended in 2023, so consumer apps no longer qualify.
• Apply the Security Rule: unique logins, encryption in transit and at rest, access controls, and audit logs. Store images and chat logs in the record system, not on personal phones.
• Verify identity and location at each session, and confirm the patient is somewhere private.
• Recording: Penal Code § 632 makes it a crime to record a confidential communication without the consent of all parties. Get and document consent before recording.
• Board notice: make the Dental Board consumer notice electronically accessible to telehealth patients, for example on the platform or website (§ 1611.3).

Worked scenario

A dentist in Fresno offers video consults. A new patient in Sacramento sends photos of a swollen jaw.

• The dentist may triage, advise urgent in-person care or emergency services, and, if the standard of care is met, prescribe an antibiotic after an appropriate assessment.
• Before the video visit, the dentist must obtain and document telehealth consent.
• The patient becomes a patient of record for restorative treatment only after the § 1684.5(b) steps: history, examination with the necessary imaging, diagnosis, and a written plan.