Telemedicine: Practicing Medicine across State Lines

With the evolution and advancement of technology, it was only a matter of time before such changes affected the medical industry. Although the concept of telemedicine dates back more than 50 years, emphasis on cost-effective quality healthcare coupled with technological advancements has caused a resurgence of telemedicine in recent years.

What constitutes telemedicine largely depends on who is answering the question. In addition, the terms telemedicine and telehealth are often used interchangeably. Telehealth has historically referred to a broad scope of remote healthcare services, whereas telemedicine refers to actual clinical practice via technology. This distinction is becoming less relevant as telemedicine expands. Currently, approximately three-quarters of states have some version of a telemedicine law. This number is constantly changing as more states adopt telemedicine laws, and those states with existing telemedicine laws amend their laws to expand or redefine what constitutes telemedicine, the permissible technology for providing telemedicine services and the requirements for a telemedicine encounter.

Certain undeniable benefits are associated with the expansion of telemedicine. However, when considering providing telemedicine services, legal issues must also be considered to ensure such services are offered in compliance with applicable law.

Telehealth has historically referred to a broad scope of remote healthcare services, whereas telemedicine refers to actual clinical practice via technology.

Benefits of Telemedicine

Although there are many benefits associated with telemedicine, the three most significant benefits include the following:

Access to healthcare: Since its inception, telemedicine has been used to provide access to healthcare services for patients located in rural areas. Telemedicine enables rural patients to easily obtain access to specialty services while remaining within their local community. In addition, telemedicine addresses healthcare shortages by allowing specialists to expand their reach beyond their office.

Improved patient outcomes: Studies have shown that telemedicine helps reduce readmissions and improve patient outcomes. This is due largely in part to the improved access to healthcare that telemedicine affords. Through the use of telemedicine, rural providers are able to easily consult with specialists. In addition, the use of technology allows for expedited transmission of laboratory and radiology images to other providers for second opinions. These factors combined have led to earlier diagnoses and treatment of patient conditions.

Reduced costs: The greatest impact of telemedicine is on the patient. Telemedicine services reduce travel time and related stresses for the patient, which in turn reduce patient costs. Telemedicine offers patients direct access to providers and specialists that might not be available without traveling long distances. Through telemedicine, specialists can team up with local healthcare providers to improve disease management and remotely monitor patients, which in turn reduces complications and readmissions, and thereby reduces overall costs to payers and patients.

Legal Issues

Several issues are associated with the provision of telemedicine services. The following is a discussion of four of the most critical issues that providers must address prior to offering telemedicine services.

Licensure: The definition of telemedicine varies by state and, therefore, so do the licensure requirements. Prior to the provision of telemedicine services, it’s critical that providers check applicable state laws to confirm that they are properly licensed to practice medicine where the patients are located. A few states require a separate telemedicine license, whereas others require the provider to be licensed where the patient is located. There are limited exceptions for consultations, but such exceptions typically apply only where the consultations provided are not routine or do not exceed a certain threshold number of consultations (often no more than 10 consultations annually).

Consent, patient encounter, scope of services: Several states require that providers obtain the patient’s written consent prior to delivering telemedicine services, and a few others require verbal consent. Patient consent should be documented in the patient’s medical record. In addition, many states require that the provider satisfy certain elements in order to create a valid patient encounter. This can include an initial face-to-face visit. Finally, several states limit the type of services that may be provided via electronic means, as well as the permissible technology for providing telemedicine services. For these reasons, it’s imperative that applicable state law be reviewed to ensure compliance.

The Federation of State Medical Boards (FSMB) drafted the Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine. This model policy is intended to provide guidance to state medical boards when regulating the use of acceptable telemedicine technology. In addition, the model policy addresses licensure, establishment of the physician–patient relationship, informed consent, and privacy and security of patient medical records, among other topics. The intent of this policy is to ease the ability to practice telemedicine across state lines.

Reimbursement: Reimbursement continues to act as a barrier to telemedicine. Medicare offers limited reimbursement for such services and typically requires an initial face-to-face encounter between a patient and a provider, with certain exceptions for patients located within a healthcare professional shortage area. In addition, Medicare will generally reimburse only for face-to-face, interactive video consultation services that mimic in-person face-to-face interactions between patients and providers.

Because Medicaid is state specific, reimbursement for telemedicine services varies from state to state. There is also no applicable reimbursement standard for private payers. Less than half of states have enacted statutes that recognize or require reimbursement for telemedicine services by private payers. Some payers understand the value of telemedicine services and will reimburse for a wide range of telemedicine services, whereas others have yet to develop reimbursement policies and, therefore, payment for telemedicine services may require prior approval.

Patient privacy: As with any patient encounter, the patient information exchanged during a telemedicine encounter is subject to protection under the Health Insurance Portability and Accountability Act (HIPAA) and applicable state law. However, patient privacy is further complicated by the fact that telemedicine services are provided via electronic means. Prior to engaging in telemedicine, providers must implement business associate and other confidentiality and privacy agreements with vendors and subcontractors. In addition, it’s important to test communication channels to ensure their security. Finally, the provider must educate its staff and administrators on the appropriate use of telemedicine technologies and the requirements under HIPAA and state law for using and disclosing patient information.

Tips for Compliance

When considering engaging in telemedicine services, providers should engage legal counsel experienced in handling the regulatory issues associated with the provision of telemedicine services.

Ensuring that providers are properly licensed where the patient is located is the first step to compliance. Once licensure is confirmed, state law should be reviewed to confirm patient consent requirements and the scope of permissible telemedicine services and technologies.

Finally, it’s important to check with major insurance companies and the Medicaid program in the states in which services will be provided to confirm reimbursement policies.

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Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC. Contact him via email at sharris@mcdonaldhopkins.com.