123s of Telemedicine

Bala Mohan | 9.17.19

Telemedicine is gaining popularity and acceptance across the states. Some of the benefits of telemedicine include easing healthcare access to patients in remote and underserved areas, increasing cost-effectiveness, efficiently delivering healthcare service, and broadening the opportunity to receive secondary opinions.  Telemedicine, in a nutshell, is the provision of health care services using telecommunication means by a healthcare practitioner in one location to a patient in another location. Telemedicine compliance is tricky and varies state to state. In addition to state laws, telemedicine is also subject to federal reimbursement, patient privacy and confidentiality laws. This article will focus on the basic state law compliance considerations and general rules for providing telemedicine in your medical practice; however, any decision to provide telemedicine requires deeper scrutiny of the laws and regulations.

1. Licensure. Clients commonly ask if they can provide telemedicine to a patient in another state. Typically, the practitioner providing the service must be licensed in the state where the patient is physically located. As is with everything else in law, there are exceptions. For example, Maryland exempts physicians licensed in an adjoining state from obtaining a Maryland license and Minnesota has a provision for physicians not licensed in the state to practice medicine in Minnesota via telemedicine by meeting certain telemedicine registration requirements. Appropriate physician licensure is a necessity when practicing medicine across state lines because providing telemedicine services in a state where the practitioner is not licensed can result in disciplinary action (including civil or criminal penalties) for the unlicensed practice of medicine.

2. Standard of Care. Practitioners using telemedicine will be held to the same standard of care that would apply to the provision of healthcare services in an in-person setting. To meet the standard of care, the practitioner must, at a minimum, establish a valid practitioner-patient relationship, provide quality health care service, obtain appropriate informed consent, document and maintain accurate patient medical records, and abide by the patient and medical record confidentiality standards required by law. A key aspect of establishing the practitioner-patient relationship is performing a proper initial consultation. Thus, an appropriate patient examination or evaluation is an important part of meeting the standard of care. Physicians must take the patient history and conduct a thorough evaluation of the patient’s medical condition prior to diagnosing the patient and prescribing the treatment plan.

3. Establishing a valid practitioner-patient relationship. As the initial step, telemedicine laws usually require the practitioner to establish a valid practitioner-patient relationship, if one does not already exist.  The legal requirements and process to establish this relationship vary amongst states. Generally, if a prior practitioner-patient relationship does not exist, it can be established via telemedicine using appropriate telecommunication means. Some states may have restrictions as to the physical location of the patient for the patient evaluation or the telecommunication modalities that can be used in practicing telemedicine. However, filling out online questionnaires, telephone calls, or text messages alone are not sufficient to establish the practitioner-patient relationship. Generally, acceptable telecommunication means are communications that use real-time streaming audio-visual technology or streaming audio coupled with store and forward technology.

4. Reimbursement. Reimbursement for telemedicine services also vary widely amongst states. Accordingly, healthcare practitioners must review their respective payor contracts prior to billing for telemedicine services. For instance, Texas has parity laws which require private payors to reimburse the same way as would be required in-person. On the other hand, Florida allows the payor and the provider to negotiate the reimbursement rates for telemedicine services.

As you can see, a myriad of legal issues must be considered prior to engaging in telemedicine practice. If you have specific questions about setting up a telemedicine practice or the telemedicine laws in your state, please schedule a consult at info@byrdadatto.com.

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