Watch Out for Legal Pitfalls Associated with Telemedicine

Lance Leider headshotBy Lance O. Leider, J.D., The Health Law Firm

With all the new technologies, mobile medical applications, expansion of access to health care under the Affordable Care Act (ACA), and the emphasis on quality care, telemedicine is at the forefront of the health care industry.

Now is the time to educate yourself on the new opportunities in practicing telemedicine. As with any new health care business model, you also have to assess the risks and be sure you are complying with the ever increasing number of regulations.

Where Telemedicine Stands Today.

The Centers for Medicare and Medicaid Services (CMS) can be credited for the telemedicine revival. In 2011, CMS issued a final rule permitting a more flexible process for credentialing and privileging practitioners who provide telemedicine services. Telemedicine escalated in 2013, when federal and state legislation and major insurers expanded the types of reimbursable telemedicine services. Now in 2014, there are more partnerships between insurers and health care delivery systems to provide patients access to specialists through telemedicine programs.
For example, WellPoint, Inc., and Aetna, Inc., among other health insurers, are letting millions of patients schedule online visits with health care professionals. These insurance companies are working together with companies that offer virtual visits with doctors who, in some states, can prescribe drugs for anything from sinus infections to back pain. According to Bloomberg, this is a major advancement for telemedicine. To read the entire article from Bloomberg, click here.

The Current Status of Telemedicine in Florida.

In March 2014, the Florida Boards of Medicine and Osteopathic Medicine adopted updated standards for practicing telemedicine. The final rule, 64B8-9.0141, Florida Administrative Code, defines telemedicine as:

the practice of medicine by a licensed Florida physician or physician assistant where patient care, treatment, or services are provided through the use of medical information exchanged from one site to another via electronic communications. Telemedicine shall not include the provision of health care services only through an audio only telephone, email messages, text messages, facsimile transmission, U.S. mail or other parcel service, or any combination thereof.

The rule states that the standard of care shall remain the same regardless of whether a physician provides services in person or by telemedicine. Also, those providing telemedicine services are responsible for the safety, security and adequacy of their equipment.

Several other parts of the new Florida telemedicine rule are worth noting:

1. Telemedicine is sufficient to establish a physician-patient relationship;
2. All regulations regarding patient confidentiality and record keeping are applicable;
3. The rule specifically exempts medical advice given by emergency responders including EMTs, paramedics and emergency dispatchers;
4. The rule also does not apply to physicians or physician assistants providing emergency care under conditions requiring immediate medical care; and
5. Florida law presently prohibits prescribing controlled substances via telemedicine.


Telemedicine and the Potential Legal Issues.

As telemedicine grows, so will the oversight and scrutiny by state medical boards and federal and state regulatory agencies. Here are some areas to be mindful of:

Reimbursement: This is continuously an issue with telemedicine. Medicare reimbursement for telemedicine services is limited and generally requires face-to-face contact between patients and providers. Medicaid reimbursement varies from state-to-state, and only about 20 states have enacted statutes that require reimbursement for certain telemedicine services. This means health care providers need to review Medicare and Medicaid reimbursement policies, state health insurance regulations, and provider payer contract requirements so that they are aware of the reimbursement requirements that may affect their billing. Educate yourself on what will and what won’t be reimbursed, and only submit compliant claims to avoid audits.

Fraud and Abuse: As a telemedicine provider, you will most likely initiate business arrangements between distinct health care entities that may include the lease of equipment or the use of a product owned, in part, by physicians. Arrangements like this need to be written with federal fraud and abuse laws in mind, including the Anti-Kickback Statute and the Stark Law. For more advice on telemedicine-related fraud issues, review advisory opinions issued by the Office of the Inspector General (OIG).

Medical Staff Bylaws: Health care organizations that depend on information from a distant-site hospital or telemedicine entity to credential and privilege telemedicine practitioners must revise their medical staff bylaws and policies to include criteria for granting privileges to distant practitioners, and a procedure for applying the criteria. Additions should also include what category of the medical staff distant-site telemedicine practitioners will join, the level of involvement they may have in medical staff committees, and what procedural rights they should be given.

Credentialing and Privileging: Under CMS’ final rule, health care organizations may rely on the credentialing and privileging decisions of distant-site hospitals or the information provided by other telemedicine entities when determining privileges for distant-site practitioners who provide telemedicine services, as long as certain conditions are met, including a compliant written agreement.

Patient Privacy: Providers are responsible for ensuring they have secure communication channels, implementing business associate and other confidentiality and privacy agreements, educating staff regarding the appropriate use of telemedicine, and understanding how and what patient information is being collected and stored.

Compliance with State Requirements: Most states require physicians engaging in telemedicine to be licensed in the state where the patient is located. It would be wise for health care organizations to seek the legal guidance of an experienced health law attorney to navigate individual state requirements.

Interactions with Pain Management Laws: Our practice has seen many physicians become the subject of some kind of government investigation or action resulting from the remote practice of medicine in a pain management setting. These telemedicine rules do not alter the status quo in pain management. Physicians are still required to see patients in a face-to-face encounter in order to prescribe controlled substances for the treatment of pain. There are discussions among the members of the Florida  Boards of Medicine and Osteopathic Medicine to permit limited prescribing of controlled substances through telemedicine. However, the boundaries of a future rule are unclear. Considering the hard-line stance the Boards have taken toward pain management in general, it is unlikely that any final rule would authorize the remote practice of pain management.

Health care providers need to stay mindful of the listed legal issues, and any others that may come up. It is important when practicing telemedicine to ensure your services are compliant, and you appropriately protect patient safety and privacy.

Comments?

Does your practice use telemedicine? In your opinion what are the benefits and what are the difficulties of telemedicine? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

French, Marie. “The Doctor Will Click on You Now.” Bloomberg. (July 13, 2014). From: http://www.bloomberg.com/news/2014-07-14/the-doctor-will-click-on-you-now.html

Kadzielski, Mark and Kim, Jee-Young. “Telemedicine: Many Opportunities, Many Legal Issues, Many Risks.” JD Supra. (July 30, 2014). From: http://www.jdsupra.com/legalnews/telemedicine-many-opportunities-many-l-18993/

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

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