Telemedicine: The final frontier?

A Law Review Q&A

It’s a scene that holds great promise: Patients, in the comfort of their own homes, access personalized and real-time treatment from leading medical experts hundreds of miles away, while virtual sensors provide continuous feedback on cognitive and physical wellness.

Sounds like science fiction?

Driven by technological innovation and the shift toward value-based delivery models, this vision has increasingly become a reality with the expansion of telemedicine. For many individuals, telemedicine means greater access to quality care, helping patients better manage chronic disease and addressing critical physician shortages in rural areas. At the same time, virtual visits and remote monitoring have the potential to dramatically lower costs over more expensive inpatient alternatives.

While technological hurdles continue to be broken, a number of legal and regulatory barriers remain hindering the broader adoption of telemedicine in the United States. This includes not only licensure and privacy requirements, but ultimately,  reimbursement for telehealth services by public and private payers. We spoke with Ross Friedberg and Rene Quashie from the firm Epstein Becker & Green to provide insight on this important topic for hospitals and health systems.

1) What are the key legal barriers to the more widespread adoption of telehealth in the United States?

Lack of licensure portability for physicians and mid-level practitioners is the most significant legal barrier to greater adoption of telehealth nationwide.  Under most state laws, physicians and mid-level practitioners must be licensed in the state in which they normally practice. Yet, if the patient being treated resides across state lines, a practitioner usually must also be licensed in that state to deliver remote services or meet a possible exception. This creates operational and administrative burdens for physicians that care for patients virtually in multiple states through telemedicine.

Second, rules governing the establishment of a physician-patient relationship are also limiting the growth of telehealth services.  In many states, a physician-patient relationship is created once a practitioner has an opportunity to take a patient’s medical history and conduct an in-person physical exam. As a result, in a majority of states, physicians are prohibited from remotely prescribing medications without first conducting an in-person physical exam. Additionally,   some states require that practitioners conduct in-person exams before providing certain telehealth services to patients who are based in the home or in other settings where a health care provider is not physically present.  

Lastly, coverage and reimbursement policies by both  public and private payers remain major obstacles to wider telehealth implementation. Under the Medicare fee-for-service program, there’s a limited number of codes that will be reimbursed under the telehealth benefit. Currently, telehealth  is covered under the Medicare program only if Medicare beneficiaries present at sites located in rural Health Professional Shortage Areas (HPSAs) or in counties outside Metropolitan Statistical Areas (MSAs). Following updated  federal delineations  nearly 100 counties will lose their telehealth benefits, further limiting access to beneficiaries in rural areas.

Additionally, under the Medicare telehealth benefit, only certain practitioners such as physicians and nurse practitioners may provide services, and they must do so in certain sites such as hospitals or physician offices. Because of these restrictions, reimbursement under the telehealth benefit- represents only a minute fraction of the total spending for the Medicare program.  

2) How have recent regulatory changes opened the door for greater implementation of telemedicine services?

Currently, 17 states have telehealth parity statutes in place, which are laws that require private insurers to cover telemedicine services if those same services are covered when provided in-person. Another 13 or so states have legislation pending regarding telehealth parity for private insurers. It is encouraging that the vast majority of Medicaid programs do cover telemedicine services for their beneficiaries, although coverage is usually limited to those services provided via live interactive communication.  Few Medicaid programs expressly cover remote monitoring services, for example. However, while these statutes require coverage, many don’t mandate the same level of reimbursement for telehealth as those services provided  face-to-face.

There are also unresolved issues regarding how telehealth claims are to be submitted for billing. Those concerns notwithstanding, the fact that states are adopting parity statutes is an indication that telehealth practitioners are increasingly being paid for services they would not have imagined just five years ago.

Additionally, the Federation of State Medical Boards (FSMB) is taking a serious look at the challenge of licensure portability through a grant from the federal government.  During recent meetings, representatives from various state medical boards proposed innovative solutions and made a series of recommendations that will allow physicians to more easily practice across state lines. Regardless of whether these recommendations are adopted in the near-term, these activities by the FSMB represent a step in the right direction.

Lastly, many of the health care reform initiatives being implemented under the ACA are showcasing the effectiveness of telemedicine. Initiatives such as CMS's Hospital Readmissions Reduction Program are creating renewed interest in remote monitoring and virtual visits post-discharge to better manage patients and prevent unnecessary hospitalizations. Likewise, programs such as the Medicare Shared Savings Program and Comprehensive Primary Care Initiative highlight the need for providers to use telemedicine technologies as tools for achieving higher quality and better coordinated care. We’re expecting interest in telehealth to continue as the health care industry continues its transition to value-based care.

3) What legal pitfalls remain for hospitals and health systems interested in implementing a remote monitoring or virtual visit program?

One major pitfall that is a frequent area of discussion in the telehealth community is patient privacy. Telehealth providers are increasingly delivering services using consumer and web-based technologies such as smart phones, mobile applications, cloud-computing platforms, laptops and personal computers.  Often when these technologies are adapted for telehealth, there are underlying information security issues that need to be addressed in order to meet HIPAA and other security standards.

In addition, the use of communication technologies for telehealth, such as remote monitoring devices and store-and-forward applications can result in the accumulation of large volumes of regulated health information across different mediums (audio, video, text, and image).  Managing and storing such large data sets and integrating this information, in its various mediums, into electronic medical records can create compliance challenges under HIPAA (such as challenges complying with medical record access and accounting requirements, preserving the integrity of PHI, and safeguarding security).  Providers who practice telehealth across state lines must also contend with multiple, and sometimes very different, state and federal privacy requirements that present a challenge.

Telehealth also creates unique risks around medical liability. Although telehealth is, in many respects, a fundamentally different model for providing health care, very few standards have been developed to guide practitioners on how to safely and effectively administer telehealth services. This includes, for example, standards and protocols to prevent transmission errors that could cut off a remote communications, standards on how to properly use telehealth equipment (such as imaging devices), and standards relating to the informed consent process in the telehealth setting. It’s imperative that hospitals and health systems develop protocols and standards around their telehealth practice, and supply patients with information upfront that highlights the medical risks associated with telehealth.

4) How do you see the legal environment regarding telemedicine evolving in the future?

Despite current regulatory barriers, we’re optimistic about the near and long-term future for telemedicine in the United States.

There’s a lot of pressure on a number of fronts that will force state legislators to address licensure portability and reimbursement challenges. A number of interest groups have passed resolutions regarding the need to provide coverage for telehealth comparable to  services provided in-person, serving as a catalyst for reform efforts at the state level. There are also a number of public health care organizations that have called for the broader implementation of telemedicine as a means to reduce demographic health disparities. Lastly, the increasing number of states considering telehealth parity statutes points toward greater reimbursement for these types of services, while actions by the FSMB signal potential changes  in state  licensure laws. As regulatory barriers continue to be broken, we anticipate that telemedicine will emerge as a prominent delivery method in the future to offer accessible, low-cost care to patients.

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