January 24, 2019

Legal Perspectives on Telemedicine

By Nora Ciancio

 

Telemedicine has become mainstream practice in the United States. As patients continue to demand convenient access to care, often outside of business hours, providers now view telemedicine as a necessary service. The absence of some type of telehealth, through portal access, phone calls, or video messaging, can place practices at a competitive disadvantage. Still, providers should consider several issues before offering telemedicine.

Licensure
Many providers use telemedicine to access patients in remote locations or across state borders. Most states require practitioners to be fully licensed where the patient is receiving care, but some states provide temporary licenses or specific licenses for telehealth services. 

Still other states, including Virginia, have stringent standards that require practitioners to be licensed both in the state where they practice and in the patient’s state. Some state legislatures have enacted interstate licensure compacts, which create multi-state licenses. Practitioners should assess whether reciprocity or endorsement options are available for licensing across state lines.

Reimbursement & Payment
In 2015, Virginia expanded commercial insurance coverage to include telemedicine. Many private payor insurance plans reimburse for telehealth services, but these reimbursements are largely voluntary. The federal government doesn’t require private payors to cover telemedicine. 

States also differ in Medicaid reimbursement for telemedicine. Some states allow reimbursement for live video, store-and-forward, and/or remote patient monitoring. Given inconsistencies in state legislation and pending federal legislation, practitioners should review new reimbursement laws.

The Fuzzy Lines of the Practitioner-Patient Relationship
Easy access to consultation and limited contact with the patient can confuse the practitioner-patient relationship. If a patient interacts with a consulting practitioner through telehealth, are that practitioner’s obligations different from the treating provider’s? Do the obligations change if only the providers communicate? Is there a practitioner-patient relationship if the practitioner has limited access to patient records and/or the patient? 

To address these issues, some state licensing boards such as the Virginia Board of Medicine (VABOM) discourage practitioners from providing telemedicine services without establishing a practitioner-patient relationship. Practitioners must verify and authenticate the patient’s location and identity; disclose and validate the practitioner’s identity and credentials; and obtain appropriate consent forms. The VABOM also requires licensed Virginia providers to adhere to guidelines governing patient-practitioner relationships in other states where they provide telemedicine.

Not to Be Used as an Afterthought
In our practice representing providers in front of their respective Boards, we often see cases where practitioners have been accused of improperly prescribing over the phone or remotely by another telecommunication means. Often, providers respond to these allegations by claiming they were simply participating in telemedicine and their treatment was allowable. 

Problems with these defenses arise, however, when practitioners don’t understand that telemedicine requires more than just a phone conversation or email exchange. Providers must maintain a patient record, take a patient history and, in some cases, perform a required exam. Telemedicine services don’t grant practitioners an exception to adhering to the standard of care or following applicable regulations. 

 

Nora Ciancio joined Goodman Allen Donnelly in 2017 and has focused on representing health care professionals in licensing and discipline matters before their professional boards. She also offers representation in Medicaid and Medicare provider appeals, credentialing and third-party payor audits, as well as advises practices on regulatory and compliance issues. goodmanallen.com