Telemedicine – A Case Study

Even before the pandemic struck, physicians and patients were both beginning to use and accept telemedicine as a convenient way to consult with patients.

So, now, your medical practice (a general practice, a specialty practice, a mental health practice, a veterinary practice, or other practice) is wondering what’s all the fuss about. Some of the questions physicians are beginning to ask, and need to ask, include:

• What is telemedicine?
• What are the technical requirements?
• What are the various types of telemedicine practices?
• What are the advantages and disadvantages to using telemedicine and telehealth services.
• What laws and regulations do I need to be aware of?
• Can my staff use telemedicine or can only the physician conduct an online consult
• When must I meet with my patient at the office or a physical healthcare facility?

What are the advantages for the doctor and the patient to a telemedicine practice?

Doctors, like you, are using telemedicine for many reasons including the following:

• Telemedicine is another source of revenue. Doctors can meet and consult with patients the doctors may not otherwise treat. Some patients are too far away to come to your office. Many patients prefer a local doctor, such as a rural or suburban doctor. Telemedicine lets the patient connect with the city doctors and the best doctors available.
• Telemedicine can be less expensive. After the initial visit and the initial technical set-up costs, telemedicine can mean less physical office space and fewer staffing requirements.
• Patients can see the doctors from home. Aside from the convenience of not traveling to an office, many patients are sick and should stay home so their condition doesn’t worsen and so the patients don’t infect anyone outside their home
• There’s generally less waiting time. Patients can work on other things or just enjoy life until their doctor is ready – instead of sitting in the doctor’s waiting room.

There are limitations to a telemedicine practice. Often you need to physically smell, touch, feel, and see your patients to understand their pain and health problems. As a rule, telemedicine should not be used for emergency situations and whenever the law requires an in-person visit.

How does telemedicine compare to face-to-face patient care medicine?

California provides an illustrative example. According to California regulatory agencies:

Telemedicine is seen as an additional tool for providing medical services. As long as the services are conducted by a California physician, there generally aren’t restrictions on the type of technology that can be used to remotely communicate with patients. However, California does have its own telemedicine regulations such as rules on when and how doctors can prescribe medications through telemedicine.

California doesn’t consider such tools as emails, faxes, or instant messaging as telemedicine. Telemedicine generally requires the use of videoconferencing or store and forward technology to provide or support health care delivery.

The standard of care for telemedicine consultations is the same as for in-person consultations. In California, physicians need to have a valid, current California license to consult with California patients – though the doctor doesn’t need to reside in California.

What are some of the initial questions your telemedicine healthcare lawyer will review with you?

At Cohen Healthcare Law Group, PC, we’ll assess your medical situation and goals. In telemedicine cases, we review many different issues such as:

• “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?”

What types of telemedicine issues do I need to review with my lawyer?

We advise medical practices on many different telemedicine laws and regulations – at both the federal and state level. Some of the many issues we’ll review with you include:

• Compliance with Stark Law, the AKS, and other fraud, abuse, and fee-splitting laws. This includes advising telemedicine companies and medical practices on Stark law exceptions and AKS safe harbors
• Drafting contracts between healthcare facilities, medical practitioners, hospitals – and telehealth companies. As telemedicine technology advances, many health providers will work with telehealth companies to communicate with their patients.
• State-by-state telemedicine requirements including licensing, diagnosis, treatment, and prescription issues
• National telehealth professional standards
• Compliance with HIPAA and other security and privacy issues
• FDA and FTC compliance issues for mobile apps and online health programs
• Transactional issues
• Terms of Use and privacy policies for websites and mobile apps
• Other regulatory analysis and compliance advice

Which medical providers can offer telemedicine services?

Your healthcare lawyer will explain which health providers in your office can and can’t offer telemedicine services if all other requirements are met. You should ask for:

• Yourself
• A nurse – and what type of nurse
• A physician’s assistant

How does telemedicine work?

Generally, doctors use software and communicate channels to communicate through the Internet. Conferences should include audio and video. Some common platforms include Zoom, Facetime, and Skype. Patients generally connect through their desktop, laptop, or smartphone. Normally, if acceptable, conferences can even be recorded.

What types of telemedicine are there?

You’ll need to decide why you want to use telemedicine. Each use has its own set of medical issues, compliance requirements, and technical problems.

There are three main telemedicine methods:

• Store and forward technology stores data and sends the date to another site. You need to extra-carful when sending and receiving any type of medical information. The data must be sent securely. The date must also comply with HIPAA (Health Insurance Portability and Accountability Act) which regulates access to electronic medical records.
• Real-time health – also known as synchronous telemedicine. This is when you speak directly to your patient in a chat session.
• Monitoring a patient long-distance.
  • “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.”

There are new telemedicine uses every day as technology catches up with demand – and vice-versa. Some software can analyze emotional stress through an examination of a patient’s facial reactions. There is software that automatically transcribes oral communications. Some hospitals are even using robotics to perform precision-surgeries – long distance.

When is telemedicine useful?

Hospitals, medical practices, and clinics are all using telemedicine to some degree. In addition to consults, health providers are using telemedicine:

• To review diagnostic imaging such as X-Rays
• For telepsychiatry because most mental health examinations don’t require any physical contact
• To take pictures of medical problems. Here, a patient can take a picture of rash or skin abnormality and send the image to their physician
• Prenatal care to review how the mother is doing
• For physical therapy
• For patients who need follow-up consults for allergies, diabetes, asthma, back pain, and other chronic problems.

What concerns should I have about licensing – especially for treating patients who live in different states than where I’m licensed?

The guidelines are changing. The American Medical Association (AMA) and the FSMB (Federation of State Medical Boards) are working on new guidelines. State medical boards are working on new guidelines too.

As a general rule, doctors who are licensed in one state, such as California, can use telemedicine to consult with patients, exchange diagnostic records, and other telemedicine uses – if the doctors are licensed in the state where the patient lives and their office is in the same state as where the patient lives.

The issue of licensing across state lines is more complicated. Technically, California doctors can speak with another doctor or another patient who lives in Pennsylvania, What’s technically achievable though isn’t what’s legal.

There are several issues you need to review with your healthcare lawyer:

• If you’re licensed in California but you’re physically in Oregon, can you give advice to a patient in California.
• If you’re licensed in California, can you give advice to a patient in New York.
• If you’re licensed in California, can you consult online with another doctor who is in New Jersey – even if the patient is in California

You need to review these “across state-line” scenarios before you give any consults or use any telehealth services.

How does informed consent work if you have a telemedicine practice?

Doctors have a duty to obtain the informed consent before conducting any surgeries. Patients have a right to know of the risks of any medications or treatments. In the same manner, patients should be informed about the risks of using telemedicine. Some states even require an oral or written consent before telemedicine services can be offered. Patents need to understand that in addition to medical risks, telemedicine also creates privacy and security risks.

Do I need to have an initial face-to-face visit with my patient before giving advice through telemedicine?

Many states do require that the physician first meet with the patient in-person before conducting telemedicine interviews.

What payment issues affect telemedicine?

Parity laws help you get paid. These laws provide that, in states that have parity laws, that the private payers reimburse you – even if you’re in a state that is different than the payer. Telemedicine payments are generally comparable to in-person payments. Parity laws may affect Medicaid reimbursement too. A little more than ½ of the US states have parity laws.

Physicians who use telemedicine to advise and consult with patients should understand which private payers and which public payers (such as Medicare and Medicaid) will pay for telemedicine services.

According to the Center for Connected Health Care Policy,

• Currently forty-six states and Washington DC’s Medicaid programs reimburse for some form of live video.
• Nine state Medicaid programs offer some reimbursement for store-and-forward
• Fourteen state Medicaid programs offer reimbursement for remote patient monitoring compared

Telemedicine is becoming a much more attractive tool for physicians. Doctors must consult with an experienced telemedicine healthcare lawyer before using these tools. There are federal and state laws and regulations that govern payment for telemedicine services, fee-splitting, and many other issues. There are also changing rules promulgated by state medical boards. The rules for using telemedicine may vary depending on your type of medical practice and who in your office is using telemedicine.

Medical practitioners and telemedicine companies should contact Cohen Healthcare Law Group, PC for legal advice on the changing telemedicine rules and regulations. Our experienced healthcare attorneys help clients take proactive compliance steps while also addressing your medical and business needs.