The legal requirements for conducting telemedicine are constantly changing. Most states now have laws regulating the practice of telemedicine. The laws only gets 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. As non-physician health providers offer advice, the scope of the laws is expanding.
Doctors and hospitals should meet with experienced telemedicine attorneys before consulting electronically with patients, physicians, or medical support staff. Failure to conduct telemedicine properly can result in fines, penalties, disciplinary actions, and loss of license.
What is Telemedicine?
Telemedicine is essentially using technology to diagnose patients away from a medical facility or site to patients from a distance. Telemedicine can include:
- Videoconferencing between the doctor and patient
- Sending images to remote locations
- Email exchanges between doctor and patient
- Remotely monitoring a patient’s vital signs
Why do patients and physicians like telemedicine?
Telemedicine allows patients in rural areas and in towns without physicians to speak with a doctor about their illnesses and injuries. Telemedicine is also useful for patients who can’t get to the physician’s office because of poor physical condition or lack of transportation.
Patients like telemedicine because it allows the patient to wait in the comfort of their home instead of sitting in an office. Telemedicine is a way to see specialists, psychologists, general practitioners, and other health care providers. This can mean seeing some of the best doctors in the state instead of just local physicians.
Physicians, patients, and insurers like telemedicine because it usually requires fewer overhead costs such as utility costs, staffing costs, and administrative expenses. It also can mean more revenue as doctors are paid for their telemedicine services by private insurers and public payors.
There are downsides to telemedicine, however. Doctors often do need to touch, feel, listen to, and physically examine the patient. Symptoms and signs of disease or potential health problems can easily be missed when examining a patient from a distance.
What are the technical requirements?
The technical requirements are generally minimal. The patient normally needs access to the Internet. The patient’s computer setup should also have a microphone and a camera so the physician can see and speak with the patient. The doctor’s office has the same requirements. Nowadays, the patient can often just use a smartphone. Physicians normally need software to handle the administrative end of the visit, to record the visit, to check vital signs, and for other medical needs.
Who is using telemedicine?
Telemedicine is being used by many different types of physicians and hospitals. Some of the most prominent areas are:
- Radiology and digital imaging. X-Rays, CT-Scans, and MRIs needs to be properly read and evaluated. Telemedicine allows patients to go to a local facility to have the test. The results can then be uploaded and sent to a radiology specialist who can read them and send the results to the physician that ordered the tests.
- Psychiatry. Behavioral and emotional problems often don’t require a physical examination of the patient. As long as the psychiatrist or psychiatrists can see and hear the patient, many of the goals of in-patient session can be achieved online.
- Dermatology. Pictures of skin diseases can be uploaded and sent out for analysis
Some of the telemedicine services, for example, that Medicare may cover include:
- Outpatient visits
- Pre-natal counseling
- Psychiatric diagnostic interview examination
- Nutrition therapy
- Smoking counseling
- Alcohol abuse assessment
- Depression screening
- Wellness visits
Again, note the legal and regulatory requirements are constantly changing and that no blog post can give you absolute authority about reimbursement or coverage; for your actual practice, consult a billing expert and/or a healthcare attorney in the course of an attorney-client relationship.
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How Medicare defines who can use telemedicine?
The rules for legally using and for billing for telemedicine services differ from state to state and for each federal agency. For example, Medicare does require that patients use telehealth services from an “originating site” located in:
- A county outside of a Metropolitan Statistical Area (MSA) or
- A rural Health Professional Shortage Area (HPSA) located in a rural census tract
Originating sites include the doctor’s offices, hospitals, critical access hospitals, rural health clinics, federally qualified health centers, and other listed facilities.
Health providers who can provide services (and later submit bills to Medicare through the physician or hospital) include:
- Nurse practitioners
- Physician assistants
- Clinical nurse specialists
- Certified registered nurse anesthetists
- Clinical psychologists
- Clinical social workers
Some exceptions do apply.
What are the different types of telemedicine?
There are several current types. New types will likely be added with advancements in technology. Current methods include:
- Real time telehealth – also called synchronous telemedicine. This is when the patient and doctor talk to each other directly. Here the patient and doctor see and communicate with each other through a secure system (usually a videoconferencing system) and through access to the Internet.
- Store and forward. Here, data is stored and then sent to a remote site through a secure connection. Store-and-forward technology must comply with HIPAA (Health Insurance Portability and Accountability Act). This law regulates access to electronic medical records. Medicare does not pay for store-and-forward telemedicine except for federal demonstration programs used in remote states – Hawaii and Alaska. Medicare prefers the real-time method. Other federal payors and private insurance companies have their own requirements and may pay for store-and-forward telemedicine.
- Monitoring of patients from a distance. Some telemedicine allows physicians and other health providers to monitor a patient’s heart rate, glucose levels, and other vital signs from a distance. If the monitoring software discovers any abnormal or unusual findings, the physician is notified and he/she can then arrange to have the patient get to the medical office or to an emergency center. This type of telemedicine is called remote patient monitoring.
Some additional types of equipment that can be added to interactive examinations include:
- Digital stethoscope
- Total exam camera
New applications allow software to monitor a patient’s facial expressions to help determine his/her emotional well-being. Newer advances may even allow doctors to perform some types of surgical procedures, through the use of robotics, long-distance.
As a general rule, physicians who use telemedicine services should have procedures in place to have the patient see a doctor personally or be taken to an ER if there’s an emergency.
What are some of the legal issues telemedicine providers must be aware of?
Any doctor, hospital, or health provider who uses telemedicine should first consult with an experienced healthcare telemedicine attorney. There is no unified standard. Each state and each agency has its own set of legal requirements. Each payor has their own requirements too. The American Medical Association and the Federation of State Medical Boards are preparing guidelines – as are state medical boards. A skilled telehealth lawyer can explain which requirements can result in criminal or civil penalties and which requirements may result in disciplinary action or loss of a medical license.
The legal issues generally revolve around the competency of the physician and the rights and needs of the patient.
How does licensing across state lines work?
In theory, it would be great if a patient with prostate cancer who lives in a more rural state like Alabama could consult online with the best oncologists in California, New York, or Massachusetts. In practice, providing medical consultations across state lines is not allowed unless the medical boards of the two states (the one with the patient and the one with doctor) have a cooperative agreement. In many cases, telemedicine across state lines will be forbidden. A possible exception is where the physician has multiple state licenses and one license is in the patient’s home state.
Generally, doctors can only provide medical advice to patients in the state where they are licensed. This still can be a benefit for the patient and also allow the physician to reach many more patients. In a state like California, doctors in San Diego could use telemedicine to reach patients in Los Angeles, Sacramento, and other parts of the state – provided all other California requirements are met.
Can medicine be prescribed through telemedicine?
Just like giving medical advice across state lines is usually illegal, physicians should prescribe medications with the view that state law and state medical standards apply. State rules regulate the types of drugs that can be prescribed and the amounts. The Drug Enforcement Agency also regulates medications. Doctors and pharmacists should speak with a skilled healthcare telemedicine lawyer before writing prescriptions that can be emailed or sent online. The law on this area is evolving.
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How does informed consent work when physicians use telemedicine?
Doctors are required under most state laws to advise their patients of the known risks of medical procedures and medications. The patient should usually sign a written consent acknowledging that he/she has been told the risks and is willing to accept those risks. Some of the telemedicine issues physicians should review with a telemedicine lawyer are:
- What privacy issues apply in giving and getting the informed consent?
- Must the informed consent be in writing?
- Does the patient need to consent to any telemedicine advice before any online sessions can begin?
Must or should the patient meet with the doctor face-to-face?
Most states do require that the physician establish the doctor-patient relationship through an initial personal visit. Once the face-to-face visit takes place, then the doctor and patient can shift to using telemedicine. It is important for the physician to understand the patient’s limitations, emotional responses, and extent of their pain. Those things can better be done in the face-to-face examination.
How does payment for telemedicine services work?
As explained earlier, Medicare has specific requirements that must be met before payment for telemedicine services will be authorized. The patient must be in an approved designated facility. Certain types of telemedicine, such as store-and-forward, Medicare doesn’t authorize. Medicaid and other federal payors, and private insurance companies have their own requirements.
What is parity?
Additionally, a skilled telemedicine lawyer can explain the concept of parity. Parity requires that payors in one state reimburse doctors and other providers in other states for approved telemedicine services. Currently, about 32 states have some type of parity law. Parity can be complicated and it may require, for example, that the person who provides the telemedicine service such as a nurse is authorized to use telemedicine in both states.
As with most new business opportunities, it’s best to speak with an experienced telemedicine lawyer before beginning to use that method. A skilled telehealth lawyer understands:
- The current state laws and regulations
- The state medical society rules for telemedicine
- The requirements for reimbursement by Medicare, Medicaid, other federal and state agencies, and by private insurers
- The licensing requirements
- Who is authorized to provide telemedicine?
- The types of telemedicine
- Rules on specific issues such as informed consent and writing prescriptions
- When a face-to-face visit is required
Make the call to an experienced telehealth lawyer today. The lawyer will review your which laws regulate telemedicine and which laws, such as California’s corporate practice of medicine law, affect who can communicate with the patient. To make an appointment now, contact Cohen Healthcare Law Group PC today by calling 310-844-3173 or by completing our online contact form.