Telemedicine or telehealth laws are providing a growing infrastructure of rules that healthcare practices and business can turn to when building out a model of healthcare beyond the brick-and-mortar practice.
We counsel a myriad of telemedicine, e-health, mobile health, and digital health clients on legal and regulatory issues in telehealth – be it telemedicine, tele-psychiatry, tele-dermatology, or other areas of mobile or online healthcare.
Every state has its own laws concerning telehealth practices. The general rule is that telehealth is governed both by the law of the state in which the physician is located (the “home state”) and, the law of the state in which the patient is located (the “remote state”).
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In many (if not most) states—with some exceptions—the physician must be licensed in the Remote State as well as the Home State. Thus, it is not sufficient that the physician is licensed in California, if the patient is located in another state.
As well, some states may require that the physician—or a suitable licensed designee, such as (for example) an NP or PA—conduct an in-person exam of the patient. The requirement of a “good faith examination” (sometimes known as an “appropriate prior examination” is a second level of analysis—the first being, whether the physician is licensed in the Remote State or can fall within an applicable exemption.
Our Telemedicine and E-Health lawyers advise telemedicine and telehealth clients about legal rules applicable to their enterprises. Because telemedicine occurs nationally, this requires sensitivity to the nuances of laws in different states. Some states allow special telemedicine licenses while others simply prohibit telemedicine by requiring that physicians be licensed in-state to diagnosis or treat any patient in-state.
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We also advise on scope of practice for various health care providers and how applicable legal rules can shape a proposed telemedicine project.
We will draft contracts and guidelines for practice for the various players in a telemedicine project and advise our clients on relevant law.
Privacy and security (HIPAA) issues also arise in the telemedicine context. Telemedicine companies as well as healthcare professionals have a legal duty to safeguard protected health information (PHI)
Adeoye Damilare Adetayo
State law governing telehealth normally is less developed than for other providers. For example, we have counseled on telehealth for providers including:
The legal landscape varies by professions. Sometimes, where there are no explicit, written rules, laws governing telemedicine can provide powerful legal analogies to guide best practices. At other times, we will advise our clients if a particular business approach seems low-risk or high-risk.
For example, there is a lot of legal uncertainty around practice as a “health coach.” Medical doctors are also jumping onboard the “health coach” category and attempting to style their services as offerings as outside the medical domain, yet within the bounds of law. Our healthcare attorneys provide sensitive and nuanced information, tailored to the specific practitioner and business opportunity at hand.
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Cohen Healthcare Law Group 530 Lytton Ave, Suite 200 Palo Alto, California 94301 (310) 844-3173 1902 Wright Pl., 2nd Floor Carlsbad, California 92008Telehealth and telemedicine are rapidly growing methods of providing patient care by way of electronic communication. Telehealth allows clinicians to connect with patients in a non face-to-face encounter via a technology platform, obviating the need for patients to leave their home and travel to a healthcare facility or provider’s office. Each arrangement presents its own particular challenges and must be structured to ensure compliance with the myriad of diverse laws and regulations including, but not limited to, the False Claims Act, Anti-Kickback Statute, Stark Law, Health Insurance Portability and Accountability Act (HIPAA), Patient Choice laws, state insurance laws, and state professional board regulations which enumerate the requirements for engaging in the practice of medicine.
Telehealth provides a variety of benefits to both patients and providers, generally allowing greater access to healthcare for patients. Engaging in remote healthcare allows healthcare providers to retain existing patients, reach new ones, and grow
Their businesses by offering health care services via videoconference or store and forward rather than requiring patients to travel to an office or hospital. While telehealth may present significant opportunity for every party to a telehealth transaction, each party must evaluate the risk of the model, including the treating provider, technology company, and any ancillary provider in receipt of orders or prescriptions derived from telehealth encounters, such as a pharmacy or laboratory.
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Improving patients’ access to care can eliminate many unnecessary emergency or urgent care visits and enhance patients’ interaction and loyalty to a particular physician or practice. By utilizing telemedicine technology, solo practitioners are able to provide greater continuity of care to their patients, which results in increased patient outcomes and reduced overall cost. Additionally, primary care physicians can more effectively triage their patients, having full knowledge of the patients’ conditions, in order to recommend appropriate follow up and avoid unnecessary in-person encounters. Telehealth also has the promise of increasing patient compliance with drug regimens and other treatment modalities resulting from regular encounters with, and evaluations by, the patient’s healthcare team.
Telemedicine can significantly increase the level and scope of services provided at rural health facilities. Patients seeking care in rural areas can be connected remotely to specialists for convenient and efficient consultations that may otherwise be inaccessible. Pursuant to Medicare reimbursement guidelines, beneficiaries must be located at a “designated originating site, ” which includes rural health clinics, in order to qualify for a reimbursable encounter. Rural health facilities can take advantage of this billable service in order to expand specialized services offered to patients.
Many patients seek medical care at urgent care centers as an alternative to hospital emergency department visits or for purposes of convenience. Urgent care centers that make telehealth available to patients are able to reduce operating expenses and potentially treat a greater number of patients. By implementing telehealth modalities, these centers can reduce wait times and more efficiently triage patients who may require additional or alternative care. However, like all other providers, physicians practicing in urgent care centers should be aware of the applicable standards of care and thoroughly review their professional liability insurance policies. In the event that a virtual patient visit does not result in a billable encounter, clinicians remain responsible for any medical advice provided.
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Mental Health providers will find significant opportunity by expanding their practices to include telehealth. Telemental health not only increases the potential to lower a provider’s operating expenses, but clinicians can be more easily accessible to patients in crisis. Often, care provided by these practitioners does not require physical presence in order to effectively treat a patient’s condition. Therefore, mental healthcare providers can provide a comprehensive scope of services through virtual encounters and comply with the applicable standard of care. While all providers must review any software and third-party platforms to ensure compliance with the requirements of HIPAA, mental health providers should consider the sensitive, protected health information in their possession, which may subject them to greater scrutiny.
Marketing agents that leverage the services of telehealth platforms in order to assist patients in obtaining particular items or services must ensure that their business relationships with these companies do not implicate or violate the Anti-Kickback Statute, HIPAA, or state fee splitting and patient steering prohibitions. Marketing agents must perform proper due diligence for any telehealth company with whom the marketer seeks to do business. An improper arrangement between a telehealth company and a treating provider can frequently interfere with the validity of a practitioner-patient relationship, and subsequently invalidate any resulting order that may be issued pursuant to the telemedicine encounter. Additionally, providers who perform encounters on telehealth platforms that do not comply with state laws regarding the modality of the encounter likewise may result in invalid orders. Due diligence of the telehealth company and its business model is always necessary.
In many ways, healthcare technology companies’ developments are charting the course for virtual healthcare legislation. Functionalities that were not possible ten years ago are now in their third and fourth iterations. As a result, telehealth platforms and software products have the capability of being comprehensive and sophisticated in order to support the needs of practitioners who will use the technology. However, technology companies that build virtual platforms, software, and other services for providers engaged in telehealth must ensure that their
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