Telemedicine’s Complex Legal Landscape

by McDermott Will & Emery
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McDermott Will & Emery

As the telemedicine landscape continues to evolve and new capabilities come to bear, those working in the industry will face a diverse mix of legal and regulatory hurdles as stakeholders begin to leverage new avenues and options for care delivery. This evolution requires practitioners to understand the legal frameworks that will continue to change as regulators attempt to keep pace with evolving technology.

To help address the complexities of the telemedicine regulatory environment — and those across the digital health ecosystem at large — we partnered with the American Health Lawyers Association to release “The Law of Digital Health,” which details legal realities for digital health leaders and their advisors looking to bring new tools to market or expand their existing positions.

Unique Legal and Regulatory Considerations Applicable to Telemedicine

The “telemedicine sector” is undoubtedly complex and rife with nuance, beginning with how it is defined, which significantly varies among payers, regulators, accrediting bodies and providers. Adding to the intricacy are the variations in telemedicine regulation, depending on factors such as the patient’s location/geography and care setting, coverage and reimbursement or type of technology used. Despite these complexities, organizations are moving forward with their telemedicine initiatives and navigating these issues because of the great potential telemedicine has to expand access to care. 

Reimbursement for telemedicine services is one such area that is constantly evolving from a policy perspective among federal, state and commercial payers, with varying regulatory implications for each area.

  • Medicare: Medicare reimbursement for telemedicine services is limited. But despite the slow pace of expansion, Congress continues to produce a stream of legislation to improve Medicare coverage for telemedicine services. The Bipartisan Budget Act of 2018 included significant health care policy changes impacting Medicare, Medicaid and other federal health programs, including expanding access to telehealth stroke services, services for chronically ill Medicare Advantage enrollees and beneficiaries assigned to accountable care organizations.
  • Medicaid: Each state’s Medicaid program has its own laws, rules, regulations and/or policies regarding telemedicine reimbursement, and no two states are identical. Some state Medicaid programs mirror Medicare with respect to telemedicine coverage. However, Medicaid programs continue to cover a more diverse and greater volume of telemedicine services than Medicare and most commercial payers.
  • Commercial Payer Coverage: Like Medicaid, reimbursement from commercial payers is highly varied. Currently, the majority of states have passed legislation that requires health plans to cover telehealth services if the plan covers the same service when it is delivered in person, with some limitations and exceptions, but only a few take the next step in requiring that the health plan also pay the same amount for the telehealth service as they do for the in-person service. As value-based reimbursement continues to grow, and providers and payers integrate more risk into their arrangements, telemedicine will provide a solution to avoid preventable readmissions and more costly inpatient services, and to better utilize existing provider resources.

The Law of Digital Health” details the mission-critical legal implications facing telemedicine today – from reimbursement frameworks, to licensure, to remote prescribing – in addition to those for the broader health care technology spectrum, including electronic health records (EHRs), big data and data analytics, and patient and consumer engagement tools and technologies. Please see here for information on “The Law of Digital Health” book.

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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