Navigate the Weird Legal Twists and Turns of Your State’s Telemedicine’s Laws

Telemedicine offers a lot of promise for both physicians and patients. For doctors, it offers another source of revenue – new patients. Telemedicine can mean lower expenses as well because distant patients don’t require an office or an examination room.

For patients, telemedicine offers:

• The chance to see a doctor from home. Many patients simply are too sick to be able to get to a local doctor’s office or a hospital. Patients in rural towns often don’t have family doctors or specialists who can treat them. A call in to a city or suburban doctor can mean the difference between life and death, getting well or staying sick.
• The opportunity to get a consultation by doctors who are among the best in their fields.
• Less waiting time in the office. With telemedicine the patient and doctor only speak with both are ready.

There are disadvantages too. Doctors often need to touch, feel, position, and even smell their patients. Telemedicine may be a good starting point but it is generally not a replacement for hands-on medical practice.

The legal requirements are constantly changing. Most states now have laws regulating the practice of telemedicine. The laws only get more complicated and more uncertain when telemedicine is practiced across state lines – the doctor and patient or a family doctor and a specialist live in different states. As the technology improves, the laws need to be updated.

Doctors and hospitals should consult with experienced telemedicine attorneys before consulting electronically with patients, physicians, or medical support staff

The dawn of telemedicine advancements

As telecommunication channels and software improve, the ability to speak with and see a doctor without having to go to the doctor’s office is increasing. The Internet allows anyone with access to communicate with any physician who has access. Patients and doctors can communicate through videoconference chats or by using Skype, or Facetime. Patients can now use smartphones in addition to desktop setups for more than just visits. Phones and apps can check a patient’s vitals and monitor the patient’s activities.

Telemedicine is being used by hospitals, clinics, doctors, and a variety of health care providers of all shapes and sizes.  Telemedicine today is being used to provide the following services and medical solutions:

• Here, the patient goes to his/her local ER or local medical office to have an X-Ray examination. The X-Rays are then uploaded and sent to a radiologist at a different location to read and review.
• Telepsychiatry can work for patients who need someone to help them with their behavioral and emotional issues. Psychiatric help generally doesn’t require any physical contact – just the ability to speak and see each other.
• Here a picture of a rash, mole, or other skin abnormality is sent for a remote review.

Telemedicine is also being used by:

• Ophthalmologists
• Prenatal care
• Oncology consultations
• Physical therapy
• Pathology

Telemedicine has a history of working well for patients with asthma, bronchitis, back pain, allergies, rashes, diabetes, upper respiratory infections, and hypertension.

Telemedicine should not be used for patients with emergency conditions such as heart failure. It should not be used where an on-site physical examination is required.

How Store and Forward Differs from Remote Patient from Monitoring from Synchronous Telemedicine

Some of the standard ways doctors are taking advantage of telemedicine are:

• Store and forward technology. Store data and then send it electronically to a remote site. The information that is sent must be sent securely. It must comply with HIPAA (Health Insurance Portability and Accountability Act) which regulates access to electronic medical records.
• Remote patient monitoring. This type of telemedicine allows healthcare professionals the ability to check a patient’s vital signs remotely. Remote patient monitoring is especially good for patients with chronic healthcare problems. For example, heartrates and glucose levels can be measured and sent long-distance. If the monitor, shows a spike or an abnormal finding, the doctor can work to get the patient emergency care. Remote patient monitoring is also known as telemonitoring or telehealth.
• Real time telehealth – also called synchronous telemedicine.” This is when the patient and doctor talk to each other directly.

Some software applications, such as clmtrackr, can examine a patient’s facial expressions and then determine his/her emotional states. Software applications are also working to automatically transcribe a patient’s session. Some doctors and hospitals are even using robotics to allow surgeons to remotely perform surgeries long-distance.

Health providers should create contingency plans for in-person visits with qualified doctors if an emergency arises.

Licensing across different states puts a twist into telemedicine practice

Every state has different rules. Many states are updating their new laws to keep up with more sophisticated technology. Different medical associations such as the AMA (American Medical Association) and FSMB (Federation of State Medical Boards) are developing new guidelines. State medical boards are also developing their own protocols.

Before starting any sessions or telemedicine communications, doctors and hospitals should review the following legal requirements, among others, with respected telemedicine healthcare attorneys:

• Licensing across state lines. A major advantage of telemedicine is that a doctor in Texas can treat a patient in New York. The legal problem is that doctors are generally licensed to practice in just one state (maybe two or three at most). Offering telemedicine services within the same state as where the patient is located is usually allowed provided the doctor is licensed in the state and the federal and state laws are followed.

Offering services across state-lines raises a red flag. Conducting telemedicine across state lines requires some sort of agreement between the medical boards of each state or the laws of each state. Doctors must know where the patient is and should review with a trusted telemedicine attorney whether a cross-state licensing arrangement exists.

• Prescribing medications. From a medical viewpoint, prescribing medications from a distance may be acceptable. From a legal viewpoint, most prescriptions are regulated by state law and state medical practice standards. The types of drugs and the amounts of the drugs that can be prescribed do vary from state to state. Physicians and pharmacists need to review these laws with an experienced telemedicine health care attorney before writing and filling these prescriptions. For example, some drugs can’t be prescribed unless there an in-person exam is conducted first.
• Informed consent. As a matter of routine practice, physicians and other healthcare providers should explain to the patient what telemedicine, when it’s available, and the requirements for using it. The patient should understand the risks such as privacy and security concerns, the risk the technology may fail, and the difficulties with scheduling. A few states currently require that patient provide written consent to telemedicine. In other states, an oral consent may suffice.
• An initial face-to-face visit. Many states require that a physician first have a pre-existing relationship with the patient before authorizing telemedicine visits.
• Parity laws require that private payers (in the states that have these laws) reimburse health providers (even if they are in other states) for telemedicine services. Currently, 29 states and Washington D.C. have parity laws. Often, the reimbursement amount for telemedicine services is comparable to face-to-face services. Parity can affect Medicaid reimbursement as well.
• Billing requirements. Doctors who use a telemedicine practice must understanding which services they can bill Medicare, Medicaid for, and private insurance carriers.

According to the Center for Connected Health Care Policy, most states authorize Medicaid services through live video, 9 will pay for store and forward telemedicine, and 14 authorize telemonitoring.

Review your specific situation with your attorney

A few sample questions healthcare providers should ask their lawyer are:

• Which healthcare providers can use telemedicine?
• What are the state requirements for offering telemedicine?
• Can telemedicine be offered across state lines?
• Where must the doctor be when offering the services- a hospital, clinic, office, or some other location?
• Must a doctor or physician be present or available?
• Does the long-distance provider have to see/conduct a physical exam of the patient in-person first?
• Which prescriptions, if any, can be offered through telemedicine?
• Who can be reimbursed for telemedicine health healthcare services? Aside from doctors, can nurse practitioners, clinical psychologists, physician assistants, or nutritional professionals be compensated?

Regulations set forth by the State of Texas for Telemedicine

The Texas Administrative Code and Texas medical boards have their unique set of telemedicine rules and regulations. Some of the telemedicine issues they address are:

• Telemedicine services. The following people can offer telemedicine services:
  • A physician
  • A physician assistant
  • An advanced practice nurse provided the nursed is supervised by a physician and the doctor authorizes the nurse to conduct a telemedicine consultation.
• A distant service provider (the healthcare professional who is providing and/or supervising the telemedicine service) must be licensed to practice medicine in Texas.
• (22 TAC 174.4) requires that the doctor must give the patient an electronic or written notification of the provider’s privacy practices. The physician should work to get a written consent from the patient acknowledging the privacy issues and risks.
• Fraud and abuse. Physicians must adopt standards to prevent fraud and abuse.
• Prior Face-to-face and in-person examinations. An in-person exam requires that the health provider and patient be in the same room. A face-to-face evaluation can be conducted through telemedicine. According to the Texas Medical Board, a distant site provider does not have to see the patient in person, prior to providing treatment using telemedicine. However, the provider must conduct a “face-to-face” evaluation via telemedicine at an “established medical site” prior to providing such ongoing care. Alternatively, telemedicine consults can be offered if the patient was referred by another physician who completed a “face-to-face” evaluation via telemedicine at an established medical site.
• Limited telemedicine licenses. 22 TAC 172.2 also allows the Board to issue a temporary or limited license. 22 TAC 172.12 allows the Board to issue an “out-of-state telemedicine license” once certain designated criteria are met, including certification by a member board of the American Board of Medical Specialties (or similar, designated board), passage of the Texas Medical Jurisprudence Examination, completion of an application, and so on. The out-of-state telemedicine license is a “limited license.”

Significantly, there is a limitation in subsection (c). An out-of-state telemedicine license to practice medicine across state lines shall be limited exclusively to the interpretation of diagnostic testing and reporting results to a physician fully licensed and located in Texas or for the follow-up of patients where the majority of patient care was rendered in another state, and the license holder shall practice medicine in a manner so as to comply with all other statutes and laws governing the practice of medicine in the state of Texas.

Unless a person holds a current full license to practice medicine in this state pursuant to this chapter and the provisions of the Medical Practice Act, Chapter 155 (relating to License to Practice Medicine), a person holding an out-of-state telemedicine license shall not be authorized to physically practice medicine in the state of Texas.

Another possible way to conduct an out-of-state telemedicine consultation in Texas is to use the “episodic consultation” exemption. 22 TAC 172.2 defines “episodic consultation” as: “Consultation on an irregular or infrequent basis involving no more than 24 patients of a physician’s diagnostic or therapeutic practice per calendar year. Multiple consultations may be performed for one or more patients up to 24 patients per calendar year.”

My recommendation, based on the above, is to apply for an out-of-state telemedicine license; or, perform an “episodic consultation.” The limitation of the latter is that it must be given to the Texas-licensed practitioner. One might surmise that Texas enforcement authorities would not intervene simply because the patient was looped into that consultation, though we are reading the enforcement tea leaves here.

What to look for in California’s new Telemedicine law

Fierce Health Care, reported that California passed a telemedicine law titled “The Telehealth Advancement Act of 2011,” (AB 415). The law is illustrative of some of the new telemedicine laws being passed in different states. The new law addresses many telemedicine issues including the following:

• Lessens the need for in-person consultations before offering telemedicine services.
• Replaces the need for written consent of telehealth services with oral consent. The disclosure of telemedicine risks by the doctor and the consent by the patient can both be verbal.
• Permits a hospital that is getting advice from a distant physician to use Medicare’s credentials for telehealth instead of developing the own.
• California doctors can now use store-and-forward technology to provide telemedicine services.

The laws on telemedicine are constantly changing. The uses for telemedicine are expanding. To understand the risk and benefits of please Contact the Cohen Healthcare Law Group. Our healthcare lawyers are respected and admired for their experience as telemedicine lawyers.