Dental Telemedicine MSO—Is it Legal? “We’re Just a Technology Platform”

Like regular telemedicine, tele-dentistry can also work within an MSO legal structure.

Introduction

As telemedicine has exploded into many forms – tele-dermatology, tele-gerontology, tele-counseling, tele-psychiatry, and other areas of medicine and healthcare – we’re also seeing tele-dentistry.

So far, no one can clean your teeth using a remote tool, but with advances in robotics and artificial intelligence, the day will surely come.

Meanwhile, in dentistry as in other healthcare businesses, we’re seeing disruptive innovation through online platforms.

The Tele-Dermatology, Software Platform Model

One form of dele-dentistry or tele-orthodontics is similar to tele-dermatology.

In the tele-dermatology model:

• You, the patient, snap a picture of a suspicious area of your skin, with your smartphone camera.
• Patient uploads the skin photo into the teledermatology platform’s piece of the cloud.
• The tele-dermatology service sends the picture for reading by a remote physician.
• The remote physician sends the report to the patient via the platform.

In this business model:

• The patient might pay a subscription fee to the teledermatology platform in order to have access to its various services.
• The patient might pay a separate fee to the dermatologist, via the platform; or that fee might be momentarily bundled into the overall platform fee.
• The platform will remit the patient visit portion to the dermatologist.

From a legal perspective:

• The tele-dermatology platform provider will have a specialized agreement with the dermatologists. Although modeled after the management services organization (MSO) model, the agreement will be specially configured to fit the technology platform model.
• The tele-dermatology platform provider will have its agreement with its clients, who will be patients of the dermatologist, embodied in the website terms of use.

From a regulatory perspective:

• The platform provider is not practicing medicine, psychology, dentistry or dental hygiene, nursing, or any healthcare profession.
• The platform provider is not involved in clinical practice. It’s “just a platform provider.”
• The platform provider is like an MSO. It provides “management” and “marketing” to the extent it connects patients to providers.

I also call this, “these droids are not the ones your looking for.” When done properly, it can be a Jedi mind trick that takes advantage of the MSO model to connect patients and providers without running afoul of corporate practice of medicine / psychology / dentistry prohibitions and fee-splitting rules.

The Tele-Dentistry MSO: Software Platform

The dele-dentistry or tele-orthodontics model can copy the above.

In a nutshell,

• Patient logs into the tele-dentistry website or app.
• Patient can find a brick-and-mortar dentistry practice to take measures of the patient’s needs with respect to necessary orthodontics to straighten the patient’s teeth.
• Alternatively, the patient can order a produce from the website or app that the patient can use to take measurements of patient’s teeth and upload them to the platform provider.
• The platform provider sources the clinical review to the dermatology and returns a report to the patient.
• Again, for treatment, the patient can either be directed to a brick-and-mortar practice (for which the platform provider, provides MSO services) or—depending on the technology—to a device the platform provider offers through online sales.

This may well be the model of most of future healthcare. Get the diagnosis done online or order it through your mobile device—then get your treatment the same way.

Navigate the Legal Pitfalls

There are some legal pitfalls that our Jedi warrior deledentistry client will have to navigate.

The good news is that by and large, these are ones faced—and successfully handled by—existing telemedicine practices.

For example:

• Standard of care: the standard of care will be the same as with in-person care.Among other things, the technology platform provider will want strong indemnification provisions from the participating dentists in case patients bring professional liability claims and include the platform as a defendant.
• Informed consent: same as with in-person care.
• Privacy and confidentiality: the platform may need to be HIPAA-compliant, or at least achieve reasonable privacy and security.

The venture will also have to make sure the dentists are licensed in the state where the patient is located; and will have to ensure that face-to-face visits are not legally required for the procedures in question.

In states with a strong corporate practice of medicine (and dentistry) doctrine, an MSO arrangement is recommended. In states with a weak corporate practice of medicine (and dentistry) doctrine, the venture might be able to have an independent contractor agreement in place, and pay the practitioners at fair market value.

In any case, the venture will want good legal advice to understand who owns (and can own) the data generated from these processes, and again, to sort out liabilities and risks as between the venture and the dentists.