Navigating the rapid growth of telemedicine

Telemedicine is a useful way to practice medicine, but physicians need to be aware of legal and regulatory issues regarding licensure, credentialing and malpractice liability.

By Jeff Atkinson | Fall 2016 | Reform Recap

 

Telemedicine is on the rise. From 2013 to 2015, the number of people using telemedicine increased from 10 million per year to 15 million, according to the American Telemedicine Association. More than half of U.S. hospitals use some form of telemedicine, and insurers are adding telemedicine coverage too.

There are multiple definitions of telemedicine (sometimes referred to as telehealth). The Centers for Medicare & Medicaid Services in its Medicaid regulations states:

Telemedicine seeks to improve a patient’s health by permitting two-way, real-time interactive communication between the patient and the physician or practitioner at the distant site. This electronic communication means the use of interactive telecommunications equipment that includes, at a minimum, audio and video equipment.

Cost-effective visits

Telemedicine is viewed as a cost-effective alternative to face-to-face meetings. It can be particularly important for providing care in rural areas and for patients who have mobility problems. Telemedicine may also encompass remote diagnostic services such as interpretation of imaging studies. Telemedicine is not a distinct specialty, but a method of delivering service.

Telemedicine has been found to be useful in many settings and situations, for instance:

  • For geriatric patients, a televisit may eliminate the need for hospitalization or a trip to the emergency room. This is particularly useful for patients in assisted-care facilities or nursing homes.
  • For patients who have access only to small community hospitals and need expertise beyond what those hospitals offer. In some cases, live consultations with physicians in larger hospitals could prevent these patients from needing to be transported to larger hospitals.
  • For patients who prefer the conveniences of being at home—or want access to medical help at late hours and on weekends—telemedicine provides an opportunity for them to consult with health care providers. In some cases, they can even attach medical equipment to their computers or telephones to transmit information to the providers. University of Iowa Health Care offers such a service to residents of the state via computer, tablet or smartphone, and patients pay a flat fee of $50 by credit card.

Variation in state laws

State laws vary considerably when it comes to telemedicine. A 2015 survey by the American Telemedicine Association reports that, regarding licensure and standards, “22 states averaged the highest ‘composite grade,’ suggesting a supportive landscape that accommodates telemedicine adoption and usage.” Twenty-six states and the District of Columbia were rated “in the middle with room for improvement,” and two states were described as having “many barriers for telemedicine and advancement.”

Texas and Alabama are the two states with the highest barriers. Texas’s barriers include a regulation by the state medical board that requires an in-person physical exam before telemedicine can be utilized. This regulation is being challenged under federal antitrust laws. A trial court enjoined enforcement of the regulations, and the state is appealing the decision (Teladoc, Inc. v. Texas Medical Board, 5th Circuit Court of Appeals, appeal docketed Jan. 8, 2016). Critics of the Texas regulation say the regulation stifles competition and interferes with access to care, particularly in remote areas of the state.

States with laws or regulations that are friendlier to telemedicine do not require in-person visits as a precondition to telemedicine services. Laws in some states require insurance companies to pay for telemedicine on the same basis as face-to-face diagnosis and treatment (when telemedicine services are an appropriate standard of care for the issue at hand). Such laws are sometimes referred to as “telemedicine parity laws.”

Medicare and Medicaid will pay for telemedicine services, although in the case of Medicare, payment is often limited to services provided to rural Health Professional Shortage Areas. There are proposals before Congress and regulators to expand the telemedicine services for which government programs will pay.

Information on state laws pertaining to telemedicine can be obtained from the American Telemedicine Association State Policy Resource Center.

Malpractice issues

An aspect of parity relates to medical malpractice issues. A physician who engages in telemedicine in a state outside the state of the physician’s office will be deemed to have submitted him- or herself to the laws of the state in which the service is rendered, according to the American Health Lawyers Association.

Physicians practicing telemedicine out-of-state (or perhaps in a different area within their state) should consult with their malpractice insurance carriers regarding scope of coverage. Insurance rates may be different when practicing in more than one state.

In addition, informed consent from a patient should include discussion, when applicable, of the limitation of telemedicine compared to in-person visits.

Licensing and credentialing

Physicians considering using telemedicine to deliver care also need to be aware of licensing and credentialing issues. Many states require that, in addition to being licensed in the state where his or her office or hospital is located, the physician who delivers diagnosis or treatment via telemedicine must also be licensed in the state where the patient is located. The license may need to be a full license to practice medicine (such as in California), or it may be a limited license for telemedicine only (such as in Louisiana and Minnesota).

A related issue is credentialing. The Joint Commission on Accreditation of Health Care Organizations (JCAHO) allows, in some circumstances, an institution to rely on the accrediting process of the telemedicine provider if the provider’s institution is accredited by the JCAHO.

Communications technology has enhanced many aspects of life—health care included. In the decades to come, we can expect to see a continuation in the rapid growth of telemedicine.

Jeff Atkinson teaches health care law at DePaul University College of Law in Chicago.

 

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