FTC Weighs-in on Telehealth: Providing Comments Regarding Alaska’s Proposed Licensure and Standard of Care Requirements

McDermott Will & Emery

In March 2016, the US Federal Trade Commission (“FTC”) staff submitted public comments regarding the telehealth provisions of a proposed state bill in Alaska demonstrating the FTC’s continued focus on health care competition and general discouragement of anti competitive conduct in health care markets, with a renewed interest and focus on telehealth.

By way of background, in March 2015, Alaska State Senator Pete Kelly sponsored Senate Bill 74. The Bill includes a provision that allows physicians licensed in Alaska, but physically located out-of-state, to provide telehealth services in the same manner as licensed physicians located in-state, and affirmatively allows certain Alaska-licensed behavioral health professionals to provide services remotely subject to existing licensure requirements.1 Alaska Senate Bill 74 passed in the Senate on April 14, 2016 and in the House of Representatives on April 17, 2016. The Bill currently awaits signature by the Governor.

Consistent with the 2004 FTC and US Department of Justice (“DOJ”) joint report entitled “Improving Health Care: A Dose of Competition”, which advised that when used properly, telemedicine has considerable promise as a mechanism to broaden access, lower costs, and improve health care quality, in comment, FTC staff expressed support for Alaska’s efforts to broaden the base of available healthcare providers through the removal of the in-state restriction, noting that many physicians currently licensed in Alaska are located out-of-state. The FTC staff asserted that the Bill has the potential to increase the supply of physicians and competition from lower-cost providers, reduce transportation costs and improve access to quality care.

Under the previous Alaska law, following patient consent, physicians providing services without conducting a physical examination were required to share all records of the encounter with the patient’s primary care provider (“PCP”).2 Records did not have to be shared if the same service was provided in-person and included a physical examination. According to FTC staff, additional requirements, such as the requirement to share records with a patient’s PCP, that specifically target remote providers have the potential to overburden and dissuade physicians from practice in Alaska, while discouraging patients who may not have a PCP or prefer to keep their records confidential.

In addition, in a footnote, FTC staff commented that “the necessity of multi-state licensure for physicians who practice across state lines is often considered a barrier to the deployment of telehealth services, and that less restrictive alternatives could reduce the burdens of practicing across state lines yet maintain appropriate standards of safety, quality and effectiveness.” In an effort to reduce this barrier, the Federation of State Medical Boards has formed the Interstate Medical Licensure Compact (“Compact”) to allow physicians who are licensed in a Compact-member state to participate in a streamlined licensure process in Compact-member states. Twelve states have adopted the Compact and many other states have introduced the legislation. Other similar efforts are underway to ease the licensing burdens applicable to other types of medical professionals. The increased focus on the need for uniformity in the regulation of telehealth is a sign that state and federal regulatory agencies and providers recognize the value of telehealth and are increasingly focused on finding legal and regulatory solutions to encourage its expansion.

1 Alaska Stat. Ann. § 08.64.364.

2 Id.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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