The Legal Aspects of Telemedicine

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Legal Aspect of Telemedicine

According to the American Telemedicine Association (ATA), the relatively new telemedicine field has grown into a multi-billion dollar industry. Most home health agencies, hospitals, primary care providers and specialists utilize some form of telehealth technology, while continuing to strive toward building a legal foundation for the discipline.

Health care organizations and insurers view telemedicine as a welcome alternative to time-consuming and costly office visits, and consumers increasingly accept telemedicine as a norm. Furthermore, the technology allows consumers to connect with providers conveniently using devices such as mobile phones and tablets. However, telemedicine practitioners currently rely on laws designed for traditional caregiving environments. The following topics review a few of the concerns affecting telemedicine providers.

Patient Privacy and Confidentiality

Using telemedicine technology, care providers can store and transmit massive amounts of information, resulting in added regulatory challenges. According to the American Hospital Association publication, Realizing the Promise of Telehealth: Understanding the Legal and Regulatory Challenges, this capability requires that telemedicine providers rethink their security practices.

Digital data transmission increases the risk that undesired parties may intercept and exploit sensitive patient information. As a result, practitioners implementing telemedicine should audit their current security measures and assess how their patient privacy and protection policies protect telemedicine users.

Data Security

Telemedicine promises to significantly improve service accessibility. However, virtually non-existent security standards can overshadow these improvements, according to a report published by the National Center for Biotechnology (NCBI) stating that security is critical for long-term telemedicine success. Cybersecurity experts suggest that care providers contemplate the same security concerns as financial institutions and large manufacturers, such as accounting, authentication and authorization from their own perspectives as well as the patients’.

Medicare and Medicaid Reimbursement

Most states have held hearings regarding telemedicine legislation for insurance coverage and payments, online prescriptions, licensing, and scope of practice. Additionally, many state medical boards have reviewed policies concerning telemedicine licensure. Across the nation, federal, state and private stakeholders have joined forces in finding ways to implement reforms that foster telemedicine implementation. Some state boards have deferred to the recommendations published by the Federation of State Medical Boards in the 2014 FSMB Model Policy for the Appropriate Use of Telemedicine that recognizes the complexity involved with providing services across state lines using traditional health laws and remaining marketplace eligible.

Credentials and Certification

Several states issue licenses specifically for telemedicine practitioners. A few of those states are:

  • Alabama
  • Louisiana
  • Montana
  • Nevada
  • New Mexico
  • Ohio
  • Oklahoma
  • Oregon
  • Tennessee
  • Texas

Most states already allow fully licensed practitioners to provide consultations to other fully licensed practitioners in other states. However, telemedicine licenses allow practitioners to deliver care directly to out-of-state patients.

Medical Malpractice

Analysts have yet to decipher whether telemedicine practitioners require special insurance coverage. The practice remains under scrutiny as to malpractice liability, the physician-patient relationship, practice standards and other issues. Currently liability rulings cover most in-person provider visits, leaving little case law to set a precedent. Of existing telehealth rulings, most cases involved internet prescriptions. Most likely, insurers will assess telemedicine practitioners’ coverage needs based on effectiveness, service quality and not the service delivery medium.

Fraud and Abuse

Prescription regulations present another issue for telemedicine practitioners. States’ regulatory boards require patients to undergo an in-person medical examination before a care provider can legally issue medication, rendering telemedicine practitioners unable to issue a prescription. Yet, what constitutes a valid in-person examination varies by state. Some states do allow examinations via telemedicine. However, many more consider any exam information gathered from online questionnaires invalid.

Jurisdictional Issues

Some insurers only cover services delivered in the state, leaving practitioners fully liable for services delivered out of state. This occurs because some states provide insurers with favorable legal environments compared to other jurisdictions. The legal system holds care providers accountable to the jurisdiction where the patient resides. Therefore, telemedicine practitioners must take extra precautions to make certain that their insurers accept coverage for those areas.

Federal and State Regulations

Telemedicine practitioners must comply with the same fraud and ethics regulations as brick and mortar practitioners. Yet, the telemedicine practice enjoys certain safe harbor protections, as determined on a case-by-case basis by regulatory agencies.

Telemedicine exposure to these laws will increase as more consumers access services using Medicare and Medicaid benefits. While all practitioners must exercise caution in not violating patient protection laws, telemedicine practitioners face enhanced risks. For example, the telemedicine practice faces additional scrutiny regarding services supervised but not rendered by a licensed practitioner.

As telemedicine continues to permeate society, lawmakers will ideally enact broad legislations, allowing unimpeded growth in the field. Legislators must introduce laws that consider new payment models for telehealth services and license portability. Telemedicine practitioners must lobby for these reforms, as well as a national standard governing the telehealth services that most United States consumers will soon receive regularly.

Learn More

To learn to speak the language of health law and distinguish your role as a leader with specialized health care compliance expertise, look to pursue a Master in Health Law and Policy from Hofstra Law.

Recommended Readings:

Understanding the MEDTECH and SOFTWARE Acts

Understanding Mobile Health Laws

Sources:

American Telemedicine

AMERICAN HOSPITAL ASSOCIATION

U.S. National Library of Medicine

Telehealth Resource Centers