Navigating the laws and benefits of telemedicine

This is the first year that all 50 states have adopted some form of telemedicine coverage. Telemedicine is the remote diagnosis and treatment of patients using an audiovisual platform—a doctor’s appointment over Skype, remotely monitoring a patient’s vitals, messaging pictures of rashes and illnesses, etc. And while certain issues will still require an in-person examination (e.g., setting a broken arm), the field is opening several new options for treatment.

Because telemedicine is still so new, the laws pertaining to it have yet to keep pace with the technology. The rules surrounding telemedicine vary greatly between states, and wading through the list of best practices and guidelines can be difficult.

So why should hospitals set up a telemedicine program? And what do they need to navigate the disparate laws and regulations around telemedicine? 

Working between states

Part of the challenge of conducting telemedicine is that providers have to be licensed in whatever state they practice in, even if they are not physically in that state. For example, if you’re in New York and one of your patients is on vacation in California, you have to be licensed by the California medical board to treat that patient via telemedicine, and you have to meet the standard of care required under California law. While states will occasionally give limited waivers allowing physicians to provide telemedicine on a more ad hoc or infrequent basis, these requirements can be a major hurdle.

Jennifer Breuer and Fatema Zanzi, partners at Drinker Biddle & Reath, with backgrounds in telehealth laws, compliance, platforms, training and implementation, and quality, agree that state medical boards serve an important role even if they hamper the promulgation of telemedicine. 

There still needs to be some degree of control relating to state medical licenses; otherwise, you could have non-professionals practicing medicine. In addition, the needs of different states make it hard to come up with a universal standard that makes sense to everyone.

“Treating a patient in North Dakota can be very different than treating a patient in New York,” says Zanzi. “Because treating a patient in North Dakota, you may not have the same number of physicians, so you may allow your nurse practitioners to have a larger scope of practice in North Dakota because of the lack of licensed physicians. States do want some flexibility in how they manage the profession.”

While one can argue both sides of the “states vs. federal” regulation question for medical boards, as it stands, each state has a huge say in who can practice medicine within its borders. And each state has its own “physician lobby” that has no interest in giving up control of state medical licensure laws.

However, the burden on telemedicine providers is being lifted slightly by the Interstate Medical Licensure Compact (IMLC). As of this writing, there are 20 states and 23 medical and osteopathic boards in those states who are part of IMLC, with about five more states considering it. The compact is intended to make it easier for physicians to be licensed in multiple states.

“If our state [Illinois] signed the compact with New York, then your licensure in Illinois would qualify you to be licensed in New York,” Breuer says. “And that’s what those compacts are trying to do—give de facto licensure to someone who’s already licensed. Or have them jump through a less rigorous set of hoops, taking your board in another state and doing the whole licensure process there.”

 “I think in reality something like that [compact] will gain traction over time because that is the way technology is moving,” Zanzi adds. “But unless there’s a federal mandate, I think it’s going to move pretty slowly. Nobody wants to give up control over who gets licensed in their state and the fees associated with that.”

Creating a telemedicine program

Setting up a telemedicine program isn’t as simple as letting physicians use FaceTime, says Zanzi. You have to ensure whatever platform you end up using is secure enough for safe sharing of healthcare information. The platform needs to be able to meet the needs of each facility. And, of course, there’s the issue of payment.

“A lot of it is billing requirements. If you’re going to do a virtual visit, you have to have a payment method mechanism set up,” she says. “How do you do the credit card transaction to make that work? Do you accept insurance, and how do you make those flow through your system to make sure payment or reimbursement really occurs?”

Hospitals need to examine the parameters of what they want their telemedicine system to do before they establish one, says Zanzi. Some questions to ask are:

•    Do you want the system to be available to all of your patients in all 50 states, or do you want more localized access? 
•    How will you handle payment and insurance?
•    Do you want the system to only include your medical staff’s own physicians, or do you want to have a network of outside physicians as well? 
•    If you include physicians outside your medical staff, how will you handle credentialing? 
•    What’s the turnaround time if someone puts a request in for a physician? Are patients seen immediately? Are they seen in 10 minutes? Is there a waiting list? 

“The providers also need to decide what types of problems they are willing to address via telemedicine,” says Zanzi. “Because it’s still not considered—and rightly so—a substitute for a hands-on face-to-face visit with a doctor. Obviously, if you have a sore throat and it’s a pretty minor problem, that’s most of what’s currently being treated by telemedicine. But there’s an awful lot where you have to do a hands-on review of systems before you can really figure out what’s wrong with someone, and people have to understand the limitations of a telemedicine visit as well.”

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