Telemedicine Rocks, AMA Says – Licensure & Standard of Care Still Thorny

The AMA now supports telemedicine, but insists on “safeguards” to help ensure the best patient care. While the AMA Policy on Telemedicine does not focus on legal issues, the telemedicine policy provides a window into increasing institutional and public policy support for the migration of medicine from physical to virtual, online and mobile.

The AMA Policy on telemedicine (telehealth) supports telehealth as a key to the AMA’s three key strategic focus areas: improving health outcomes, accelerating change in medical education, and enhancing physician satisfaction and practice sustainability.

The AMA Policy, contained in Report 7 of the Council on Medical Service (A-14), Coverage of and Payment for Telemedicine, says that there are three categories of telehealth:

• Store-and-forward telemedicine: the transmittal of medical data (such as medical images and bio-signals) to a physician or medical specialist for assessment. Store-and-forward telehealth is used by specialties such as dermatology, radiology, and pathology, which can use “asynchronous” telemedicine.

• Remote monitoring telemedicine: remote monitoring, or self-monitoring, allows medical professionals to monitor a patient remotely. This is typically used to manage chronic diseases or specific conditions as patients use devices at home, to capture health indicators.

• Real-time interactive telehealth services: These involve real-time, face-to-face interaction between patient and provider via an online portal.

AMA notes that telehealth reimbursement varies widely, and that standards of care for telehealth are evolving.

AMA suggests that before physicians provide any telemedicine service, they should verify telemedicine insurance coverage with their malpractice liability insurance carriers, and that the coverage applies when the physician renders advice across state lines.

The AMA affirms that telemedicine is not a technology, but a set of clinical practices, technologies, and organizational arrangements.

Regarding reimbursement, AMA notes that:

• Medicare provides reimbursement for “a relatively narrow list of Part B services that are provided via telemedicine,” including: initial and follow-up inpatient consultation; office or other outpatient visits; psychiatric diagnostic interview examinations; and various other services.

• 46 states and DC offer some form of Medicaid payment for telemedicine services.

• Some of the leading private health insurers provide coverage and payment for telemedicine, or partner with telemedicine companies that offer health consultations with very different healthcare technology models.
As to professional standards, AMA cites a number of specialty societies that have developed clinical guidelines for telehealth, telepsychiatry, teleradiology, telenuerology, tele-dermatology, tele-opthamology, and so on.

HIPAA and state privacy and security laws are a great concern in telehealth, and legal counsel familiar with HIPAA rules relevant to telemedicine and m-health should be involved in any business strategy.

AMA references Policy H-160.937 for an outline of principles for the supervision of non-physician providers and technicians when telemedicine is used.

Regarding standard of care in telehealth, AMA states that the a valid patient-physician relationship must be established, through at minimum a face-to-face examination, if a face-to-face encounter would otherwise be required in the provision of the same service not delivered via telemedicine. That face-to-face encounter could occur in person or virtually. Or there could be a consultation with another physician who has an ongoing physician-patient relationship with the patient. Among other things, there must be mechanisms to ensure continuing of care, follow-up care, and referrals for emergency services.

Notably, physicians and other healthcare practitioners delivering telemedicine services must be licensed in the state where the patient receives services, “or be providing these services as otherwise authorized by that state’s medical board.” And, telehealth delivery must comply with state scope of practice of laws. Telemedicine services must be evidence-based, properly documented, and include care coordinating with existing medical treatment.

Whether concerned with licensing, scope of practice, fee-splitting, reimbursement, liability, credentialing, or other telemedicine legal questions, contact your telehealth lawyer to vet the legal and regulatory issues in your telemedicine venture.

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