Research · 6 min read
What a State Telehealth Consent Rule Actually Requires
California puts one sentence of duty on the clinician before the first remote encounter, attaches a documentation requirement to it, and makes failure a disciplinary matter. Washington's telehealth consent duty is about something else entirely.
Key takeaways
- California Business and Professions Code section 2290.5 requires the provider initiating telehealth to inform the patient and obtain verbal or written consent to that mode of delivery before care is delivered, and to document it.
- California's definition of telehealth includes both synchronous interactions and asynchronous store and forward transfers, so the duty is not limited to live video.
- Failure to comply with section 2290.5 constitutes unprofessional conduct, which routes the consequence through the licensee's board.
- The section states that confidentiality laws, and the professional responsibility and standards of practice that apply under a provider's license, apply to telehealth interactions as well.
- Section 2290.5 does not alter any provider's scope of practice and does not authorize care in a setting or manner not otherwise permitted by law.
- Washington's telehealth consent duty under RCW 48.43.735 is consent to billing for an audio-only service, obtained before the service — a different obligation from California's consent to the mode of care.
Answer first: California requires consent to the method, before the care
California Business and Professions Code section 2290.5 states the duty in a single sentence. Before the delivery of health care via telehealth, the health care provider initiating the use of telehealth shall inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health. The consent shall be documented.
Four features of that sentence decide what it actually demands. The timing is before the delivery of health care, not at any convenient point in the encounter. The person who owes the duty is the health care provider initiating the use of telehealth — a named role, not the company operating the platform. The consent is to the mode of delivery, not to the treatment. And it may be verbal or written, but either way it shall be documented.
That last pair is worth separating. A verbal consent satisfies the statute. An undocumented consent does not, because documentation is a separate requirement in its own sentence.
What the section conspicuously does not do is set out a script. It does not enumerate risks that have to be recited, it does not require a signature, and it does not prescribe a form. It requires that the patient be informed about the use of telehealth and that consent to that use be obtained and recorded.
The definitions decide how far the rule reaches
Section 2290.5 opens with definitions that apply for purposes of California's healing arts division, and they are broader than a video call.
Telehealth means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient's health care. The section adds that telehealth facilitates patient self-management and caregiver support for patients, and includes synchronous interactions and asynchronous store and forward transfers.
Because asynchronous transfers are inside the definition, the consent duty is not limited to encounters where two people are talking at the same time. Asynchronous store and forward is defined as the transmission of a patient's medical information from an originating site to the health care provider at a distant site. Synchronous interaction is defined separately as a real-time interaction between a patient and a health care provider located at a distant site.
The two site terms are defined in a way that matters for an online program. Originating site means a site where a patient is located at the time health care services are provided via a telecommunications system, or where the asynchronous store and forward service originates. Distant site means a site where a health care provider who provides health care services is located while providing those services via a telecommunications system.
Health care provider is defined by license category. It means a person who is licensed under the healing arts division. It also names several categories that are not full licensees: an associate marriage and family therapist or marriage and family therapist trainee functioning under a cited section; a qualified autism service provider certified by a national entity as defined in a cited section, or a qualified autism service professional as defined in another; an associate clinical social worker functioning under a cited section; and an associate professional clinical counselor or clinical counselor trainee functioning under a cited section.
That list is worth reading rather than skimming, because it decides who owes the duty. The consent obligation runs to the person initiating the use of telehealth, and the definition of that person includes associates and trainees operating under supervision as well as fully licensed practitioners. It does not, on its face, name the company operating the platform.
The consequence: it is a disciplinary rule, not a contract term
The section does not leave the effect of non-compliance to inference. It states that the failure of a health care provider to comply with the section shall constitute unprofessional conduct, and that a cited section of the code shall not apply to it.
Unprofessional conduct is the operative category in a California licensing case. Placing a consent failure inside that category means the remedy runs through the licensee's board rather than through a dispute between a customer and a company.
Two further sentences extend the licensee's existing obligations into the remote setting rather than relaxing them. All laws regarding the confidentiality of health care information and a patient's rights to the patient's medical information shall apply to telehealth interactions. And all laws and regulations governing professional responsibility, unprofessional conduct, and standards of practice that apply to a health care provider under the provider's license shall apply to that provider while providing telehealth services.
The second of those closes the most common misconception about remote care in California, which is that a different and lighter standard applies because the encounter happens on a screen. The statute says the licensee's own standards of practice travel with the licensee.
What the section refuses to do
Two subdivisions of section 2290.5 exist to prevent the statute from being read as a grant of authority, and both are useful to a reader trying to work out what a telehealth program may offer.
The first: this section does not alter the scope of practice of a health care provider or authorize the delivery of health care services in a setting, or in a manner, not otherwise authorized by law. Consent to telehealth does not expand what a given license permits, and it does not make a service lawful that would not be lawful in person.
The second: this section does not preclude a patient from receiving in-person health care delivery services during a specified course of health care and treatment after agreeing to receive services via telehealth. Agreeing to the mode once does not lock the course of care into that mode.
The section also carries an exclusion. It shall not apply to a patient under the jurisdiction of the Department of Corrections and Rehabilitation or any other correctional facility.
A separate subdivision addresses hospital credentialing rather than consumer care. Notwithstanding any other law and for purposes of the section, the governing body of the hospital whose patients are receiving the telehealth services may grant privileges to, and verify and approve credentials for, providers of telehealth services based on its medical staff recommendations that rely on information provided by the distant-site hospital or telehealth entity, as described in three cited federal regulations. The section records the Legislature's intent in enacting that subdivision, and states that for its purposes telehealth shall include telemedicine as that term is referenced in the same federal regulations.
Two points follow from that subdivision. It is a rule about how a hospital may credential a distant provider, not about what a consumer is told. And it is the one place in the section where the word telemedicine appears at all — everywhere else California legislates around the broader term telehealth.
The section's own note records it as amended by a 2025 chapter effective at the start of 2026, so a summary written earlier may not match the current text.
Washington's telehealth consent duty is a different obligation
It would be easy to assume that a state with a telehealth consent requirement has the same requirement as California. Washington's is about money.
RCW 48.43.735 provides that if a provider intends to bill a patient or the patient's health plan for an audio-only telemedicine service, the provider must obtain patient consent for the billing in advance of the service being delivered. The object of that consent is the billing. The trigger is an audio-only service specifically. And the statute sits in Washington's insurance code, governing when a health carrier must reimburse.
California's section 2290.5 asks for consent to the mode of delivery, across synchronous and asynchronous telehealth alike, from the provider initiating its use, with documentation, and makes failure unprofessional conduct.
Those are two different duties that happen to share the word consent. A program operating in both states satisfies neither by satisfying the other.
Neither statute tells a reader whether a particular consent screen was adequate, and neither creates a personal remedy in the text quoted here. What they establish is where the obligation sits: in California, on the licensed provider initiating the telehealth encounter, enforced through the licensee's board; in Washington, on the provider who intends to bill for an audio-only service, enforced first through the insurance commissioner and then, for a pattern of unresolved violations, through a disciplining authority.
Sources
- California Business and Professions Code section 2290.5 — telehealth definitions and consentThe definitions of asynchronous store and forward, distant site, health care provider, originating site, synchronous interaction and telehealth; the requirement that before delivery of health care via telehealth the provider initiating its use inform the patient and obtain verbal or written consent to that mode, documented; the statement that the section does not preclude in-person delivery after agreeing to telehealth; the statement that failure to comply constitutes unprofessional conduct; the statement that the section does not alter scope of practice or authorize otherwise unauthorized delivery; the application of confidentiality laws and of professional responsibility, unprofessional conduct and standards of practice to telehealth interactions; the correctional-facility exclusion; and the hospital credentialing subdivision.
- Revised Code of Washington 48.43.735 — Reimbursement of health care services provided through telemedicine or store and forward technology — Audio-only telemedicineThe Washington requirement that a provider intending to bill a patient or the patient's health plan for an audio-only telemedicine service obtain patient consent for the billing in advance of the service being delivered, and the enforcement path running from the insurance commissioner to the appropriate disciplining authority for a pattern of unresolved violations.
Frequently asked questions
What does California require before a telehealth visit?
Business and Professions Code section 2290.5 requires that, before the delivery of health care via telehealth, the health care provider initiating the use of telehealth inform the patient about the use of telehealth and obtain verbal or written consent from the patient for the use of telehealth as an acceptable mode of delivering health care services and public health, and that the consent be documented. This is California's rule; other states write their own.
Does the consent have to be in writing?
The statute permits either. It says verbal or written consent. It then adds a separate requirement in its own sentence: the consent shall be documented. A verbal consent that is not recorded does not satisfy the section as written, because documentation is required independently of the form the consent took.
Does the rule apply if there is no live video call?
California defines telehealth to include both synchronous interactions and asynchronous store and forward transfers, and defines asynchronous store and forward as the transmission of a patient's medical information from an originating site to the health care provider at a distant site. Because the definition covers both, the consent duty in section 2290.5 is not limited to encounters conducted in real time.
What happens if a provider does not obtain consent?
Section 2290.5 states that the failure of a health care provider to comply with the section shall constitute unprofessional conduct. That places the consequence inside California's licensing system rather than in a dispute between a customer and a company. The section does not state a fine or a private remedy.
Does consenting to telehealth mean all care has to be delivered that way?
No. Section 2290.5 states that it does not preclude a patient from receiving in-person health care delivery services during a specified course of health care and treatment after agreeing to receive services via telehealth. The section also states that it does not alter the scope of practice of a health care provider or authorize delivery of services in a setting or manner not otherwise authorized by law.
Is Washington's telehealth consent requirement the same thing?
No. RCW 48.43.735 requires that a provider intending to bill a patient or the patient's health plan for an audio-only telemedicine service obtain patient consent for the billing in advance of the service being delivered. That consent is to the billing, applies to audio-only services, and sits in Washington's insurance code. California's consent is to the mode of care delivery and sits in its healing arts division.