Telemedicine: Its Legal Challenges

The advent of internet-enabled technologies and the expansion of telecommunication services has made a new form of medicine possible, appropriately branded telemedicine. The simple definition of telemedicine is the use of electronic communications and software to provide clinical services to patients without an in-person visit. At this point, many of you have probably heard of […]

The advent of internet-enabled technologies and the expansion of telecommunication services has made a new form of medicine possible, appropriately branded telemedicine. The simple definition of telemedicine is the use of electronic communications and software to provide clinical services to patients without an in-person visit. At this point, many of you have probably heard of telemedicine. In fact, the idea is certainly not new. As far back as the 1950s hospital systems and medical centers attempted to share information and images via the phone. One of the first reported successes of this foray occurred in this state when two Pennsylvania health centers transmitted radiologic images over the phone.

Unlike telehealth, which is a broad term referring to any health services conducted with the aid of internet technologies, telemedicine specifically entails replacing the traditional doctor’s visit with a secure online interaction. There are two primary forms of telemedicine technologies, “synchronous” and “asynchronous.” “Synchronous” technology allows real-time communication between the patient at the “originating site” and the practitioner at the “distant site.” “Asynchronous” technology, also known as “store and forward,” refers to the transmission of medical information from the “originating site” to the “distant site” that the practitioner then reviews at a later time. Policymakers and physicians alike strongly prefer “synchronous” technology as having a live, interactive conference is much less likely to impact the quality of care.  Many of the existing insurance carriers that offer reimbursement for telemedicine services strictly prohibit “asynchronous” technology.

The popularization of telemedicine arose from its theorized diverse applications, especially its use for providing specialty care for remote patients who have previously lacked the availability and means to seek such care. Other applications include “follow-up” visits, remote chronic disease management, remote post-hospitalization care, preventative care support, school-based telehealth, and assisted living center support. “Follow-up” visits are often missed or rescheduled. Telemedicine eliminates this inefficiency and increases the convenience for the patient and provider. Utilizing telemedicine for chronic disease management decreases cost and allows patients to maintain better control over their health. Readmissions due to a lack of proficient post-hospitalization care can be significantly reduced by employing telemedicine to assess and advise patients whether to return to the hospital. Mental health and addiction treatment can benefit patients by ensuring they receive the immediate care and support they require. By instituting telemedicine in school systems, children can receive immediate diagnoses from practitioners without ever having to leave school. This diagnostic triaging can determine the severity of the child’s condition and thereby reduce the unnecessary and costly process of parent pickups and immediate emergency center care. Parents can be provided with instructions and reassurances all in a convenient, streamlined manner. Assisted living centers now have an avenue for less urgent issues that arise at night or on the weekend that forego hospitalization. On-call practitioners can now provide immediate care. With a multitude of applications and availability of technology telemedicine should be widely available; however, two hurdles, regulation and reimbursement, continue to block the way.

Though the idea is old, the adoption and practice of telemedicine are still in its infancy. Not only did the concept of telemedicine have to wait for the production of expensive and complex equipment capable of reliably connecting doctors to their patients, but it also had to wait for the adaptation of the legal and regulatory framework to support it. Much like the adoption of universal electronic medical records, the process to implement widespread access to telemedicine has been arduous. Even in this modern technological age, long after the necessary equipment and network infrastructure have been developed, legislatures have been slow to pass bills that specifically outline the regulations on telemedicine and the limitations on insurance carriers reimbursing practitioners.

The regulatory environment for telemedicine presents various key issues that state medical boards and legislatures have worked to define and resolve. Chiefly among those issues, online prescribing, physician-patient relationship, cross-state licensing, and patient consent for treatment have posed strenuous challenges. Online prescribing of medications via telemedicine, especially that of scheduled drugs, typically requires an initial in-person physical exam. How the physician-patient relationship is established for telemedicine differs from state to state. Some states require the first “new-patient” visit to be in person with subsequent “follow-up” visits allowed to be conducted through telemedicine. Other states allow the physician-patient relationship to be established entirely through telemedicine interaction. Each state has its own laws regarding patient consent for treatment, and some states do not require it at all. Traditionally, written consent is required, and some states maintain this requirement for telemedicine care. Other states have adopted the written consent to an interactive online form that ensures patients read and check each pertinent line item. Lastly, cross-state licensing, which allows practitioners to provide telemedicine care to a patient in a neighboring state in which the practitioner is not licensed, requires the cooperation of state medical boards to form working models. These models include reciprocity, licensure by endorsement, and mutual recognition. Reciprocity is the simplest model allowing practitioners to utilize their existing license in another state. Licensure by endorsement involves state boards granting licenses to practitioners who hold valid licenses in states with similar standards. Some endorsement states require the practitioner to attain additional qualifications. Mutual recognition involves the organization of a multi-state pact that forms a legal agreement to accept the policy and processes of each participant-state with efforts made to promote the “harmonization of standards.” Each of these issues has required significant consideration by policymakers to ensure that the quality of patient care does not decline as a result of telemedicine.

State-mandated reimbursement programs are vital to the survival of telemedicine. In each state, both private payer reimbursement and Medicaid & Medicare reimbursement require legislation. Private carriers almost universally exclude “asynchronous” telemedicine. They also have stringent requirements regarding the technological platforms utilized for the “appointment.” Third-party platforms, such as Skype are not permitted. Only platforms that are specifically designed for telemedicine are allowed. This ensures patient privacy and prevents connectivity-related issues. Reimbursement levels are also controlled by the state with most requiring the same level of reimbursement for telemedicine as for in-person visits. Medicaid has the same reimbursement protocols as Medicare for telemedicine. The only variation is that Medicaid offers lower reimbursement levels for certain types of care. Forty-eight states provide Medicaid reimbursement for “synchronous” telemedicine, the exceptions being Massachusetts and Rhode Island. The factors for telemedicine reimbursement that both private payers and Medicaid consider are the medical specialty type, the type of service provided, the “originating site,” and the “distant site.” The framework for telemedicine reimbursement undergoes consistent changes that adapt as the availability of care expands.

The General Assembly of Pennsylvania heard House Bill No. 15, which outlined the regulations for Pennsylvania telemedicine, in the 2019 session on March 5th. The bill includes guidelines for state licensure boards on how to regulate telemedicine. It discusses explicitly patient privacy and data security standards, which must comply with the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act. Under the same section, the bill also considers model policies for the appropriate use of telemedicine technologies. Pennsylvania mandates that telemedicine care complies with the current health care regulations such as the establishment of the patient-provider relationship, consent for treatment, appropriate examinations, and maintaining electronic medical records. “Out-of-State health care providers” are only permitted to offer telemedicine care through a federally operated facility or in certain emergency cases. Lastly, the bill discusses the framework for reimbursement for both private payers and Medicaid. Currently, both Highmark and Independence Blue Cross offer coverage for telemedicine care in Pennsylvania; furthermore, Medicaid & Medicare reimbursement is supported outside of metropolitan statistical areas. All in all, general access to telemedicine care in Pennsylvania is expanding. As the need for medical services in multi-state remote areas grows, so too will telemedicine. With the expansion of telemedicine nationwide, we will continue to see an increased necessity for legal guidance to ensure the quality of patient care.

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