The legal hurdles standing in the way of telehealth (and how they might be overcome)

A law review Q&A

The next few years may not be smooth sailing for telehealth. While many providers see telehealth offerings as a way to attract consumers, expand geographic reach, and reduce the cost of care, they face significant financial, operational, legal, and regulatory challenges to adopting telehealth services.

We sat down with Julian Rivera, a Partner at Husch Blackwell, to understand current telehealth regulations, how they've shifted in recent years, and what legal challenges providers may still face.

Q: Let's start with the lay of the land. What federal and state laws regulate providers' use of telehealth? 

Julian Rivera: There's a whole patchwork of state and federal regulations that providers have to work through. CMS has outlined and continues to update federal regulations. States also have scope-of-practice laws that have ramifications for telemedicine. And federal and state privacy laws, such as HIPAA, control information sharing across telemedicine platforms.

It's also worth noting that the Ryan Haight Online Pharmacy Consumer Protection Act prohibits online prescribing of controlled substances, although it allows a few exceptions. Additionally, FDA has recently further expanded its digital health innovation engagement.

Q: Have you seen any legal or regulatory shifts in recent years that may either encourage or limit further adoption?

JR: Through annual updates to the physician fee schedule, CMS has expanded reimbursement for telehealth services based on CPT codes.  This year, it expanded coverage to include chronic disease management and dropped the need for a GT modifier.

Congress also recently authorized telemedicine payment for accountable care organizations (ACOs) and other alternative fee arrangements. Medicare's advances in telehealth adoption are lagging in comparison to state and private payers, but many advocates hope that federal statutory and regulatory changes are coming soon.

Medicaid was one of the first payers to reimburse telemonitoring, and we've continued to see Medicaid programs around the country adopt innovative programming. While regulations vary, most states have taken steps to broaden the scope of appropriate telehealth service use. Most telemedicine business growth has been in the commercial payer space as large employers have contracted directly with providers and pressured carriers to cover more virtual care services.

That's a lot to keep tabs on, but an important point to remember is that all of these regulations and policy provisions are ultimately defining whether and in what circumstances a physician-patient relationship can be safely and legitimately established via telehealth tools.

Q: Looking forward, is there legislation moving through federal or state legislatures that might signal additional changes?

JR: There are a number of bills moving through Congress that aim to expand the authority of Veterans Health Administration physicians to treat patients across state lines. If this were to pass, it would represent a broad policy expansion and a statement from the federal government that treating patients across state lines is safe and permissible, at least in the context of treating our veterans.

Q: Many point to the issue of state licensing as a key hurdle to further telehealth adoption and utilization. Can you expand on this?

JR: Let's take a step back: Under current practice regulations, providers must be licensed to deliver care in the same state where the patient is located. While this requirement is intended to protect patients and the physician-patient relationship, many feel it is preventing telehealth adoption and innovation.

Many of our clients come to us for guidance on how to navigate state licensure laws, which some feel do not adequately reflect the changing nature of the medical practice and the growing use of technology. Some organizations have tried to develop more efficient pathways for state regulation—for example, the Federation of State Medical Boards issued a compact designed to ease some of the burdens associated with obtaining multiple state licenses.

Still, significant cost, time, and regulatory hurdles remain. For example, if a dispute is brought against a physician who holds multiple state licenses, he or she would need to be prepared to answer to the allegations in each state. One state medical board might issue disciplinary action, a second might not deem the incident an issue, and a third might want to discipline the provider simply because another state decided to discipline the provider.

Q: Do providers face unique malpractice risks when choosing to deliver telemedicine?

JR: Interestingly, we have not yet seen many medical malpractice cases specific to telemedicine. This may be related to the fact that—at least to this point—telemedicine has been largely limited to care that physicians deem low-risk, or feel very comfortable delivering remotely.

In general though, the current state of malpractice claims implies that physicians are exercising appropriate diligence in their use of telemedicine, a fact that often gets lost in telemedicine safety discussions.

Q: What final advice do you have for providers who are interested in expanding telehealth capabilities?

JR: First, I would recommend providers pay close attention to their relationships with technology vendors. As patient information is shared across digital platforms, providers must be vigilant to maintain the privacy and security of protected health information.

And second, I would advise providers to prioritize physician engagement and alignment. To successfully integrate telemedicine into enterprise health care delivery, health systems must align physicians providing virtual care with those confined to brick-and-mortar sites. Moreover, all of these providers must be aligned with broader health system or medical group goals. Providers can take advantage of opportunities to partner with entrepreneurial physicians as a means of advancing broader business goals.


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