Telemedicine Expansion—Navigating Potential Pitfalls

by Pepper Hamilton LLP

This article was published in AHLA Connections (February 2014). It is reprinted here with permission.

The fervent debate on health care underscores the need to deliver and make accessible quality health care to patients throughout the United States in an efficient and cost-effective manner. Amidst technological advancements, the move to EHRs, and innovative institutional partnerships, an upsurge in telemedicine is expected in 2014.

Understanding Telemedicine

Telemedicine involves direct patient care and is a subcategory of telehealth, a broader concept that includes the use of telecommunications technologies to support long-distance health care, health-related education, public health, and health administration. CMS defines “telemedicine” as “the provision of clinical services to patients by practitioners from a distance via electronic communications.” Telemedicine covers a range of services, from remote monitoring of stroke and cardiac patients to diagnostic interpretations completed at a distant location. In 2014, telemedicine will continue to transform the way health care is provided, permitting the delivery of services anywhere at any time.

The resurgence of telemedicine began in 2011, when CMS issued a much-awaited final rule permitting a more flexible process for credentialing and privileging practitioners who provide telemedicine services; escalated in 2013, when federal and state legislation and major insurers expanded the types of reimbursable telemedicine services; and will continue in 2014 as a Federation of State Medical Boards task force drafts language for the Interstate Medical License Compact, a proposed system that, if successful, will reduce barriers to practicing telemedicine across state lines. In 2014, we will see more arrangements among and between health care organizations, clinics and large institutions alike, and distant-site specialists to provide tele-ICU, tele-stroke, and other services, as well as the development of mobile technology for patient monitoring, patient engagement, and virtual clinical encounters.

Addressing Legal Issues in Telemedicine Practices

As more providers use telemedicine and more entrepreneurs develop technology to support telemedicine services, oversight and scrutiny of telemedicine by state medical boards and federal and state regulatory agencies will increase. Providers must be mindful of the following legal issues to ensure their telemedicine services are compliant with federal and state requirements and appropriately protect patient safety and privacy:

  • Reimbursement: Reimbursement will remain a barrier to telemedicine in 2014. Medicare reimbursement for telemedicine services is limited. Medicaid reimbursement varies from state-to-state, and only about 20 states have enacted statutes that recognize or require reimbursement for certain telemedicine services by commercial insurers. Providers should be aware of the reimbursement requirements and restrictions that may affect their billing practices, know what telemedicine services will and will not be reimbursed, and only submit compliant claims to avoid liability for fraud and abuse and false claims.

  • Credentialing and Privileging: Regardless of telemedicine advancements, health care organizations remain liable for the care provided to their patients. To mitigate possible negligent credentialing claims and associated risks, when entering into written agreements with distant sites, health care organizations must confirm that any written agreement they sign reflects current legal requirements, establish specific responsibilities of distant-site hospitals and telemedicine entities, and ensure that written agreements include adequate representations, warranties, and indemnifications regarding the quality of services provided by the distant site and any entity with which it subcontracts.

  • Peer Review: As telemedicine practices expand and reliance on telemedicine practitioners grows, health care organizations and telemedicine entities must develop policies and procedures for monitoring telemedicine practitioners and sharing internal review information so that the privacy of peer review and patient information is protected while information needed to make accurate credentialing and privileging decisions is shared. This information must include adverse events that result from telemedicine services provided by a practitioner to patients, and complaints the health care organization receives about a practitioner. Information should only be disclosed in a manner that preserves all peer review privileges under state law.

  • Patient Privacy: Entrepreneurs will continue to develop interfaces and mobile applications for virtual physician-patient interactions. Prior to relying on any telemedicine technology to collect and transfer patients’ protected health information, providers should ensure that they have secure communication channels, implement entity- and technology-specific business associate and other confidentiality and privacy agreements, educate administrators and users regarding the appropriate use of telemedicine technologies, and understand how and what patient information is being collected and stored. When information is shared between distinct entities, all disclosures must comply with federal and state privacy laws. Mobile health applications and devices must also comply with multiple privacy and security regulations.

  • Compliance with State Requirements: Most states still require physicians engaging in telemedicine to be licensed in the state where the patient is located, with limited exceptions for consultations. While legislators and state medical board representatives discuss alternatives to this requirement, health care organizations need expert legal guidance to navigate individual state requirements, including licensure, consent, and practice of medicine issues, when providing telemedicine services.

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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