Telemedicine is viewed by many as one of the solutions to rising healthcare costs and the looming physician shortage.
While the availability and use of telemedicine services is increasing annually, healthcare providers engaged in the provision of telemedicine services must carefully navigate numerous regulatory obstacles. Failure to abide by applicable laws may jeopardize the licensure of the healthcare provider, result in the imposition of monetary fines and penalties, and increase potential exposure to medical malpractice claims.
Following state rules
Licensure presents the most obvious obstacle to the growth of telemedicine services, as state laws governing the provision of telemedicine services differ widely. Generally, healthcare providers are required to be licensed in the state in which the patient receiving the services is located. Certain states, like Texas, offer a special license for the provision of certain types of telemedicine services.
Other states, like California, allow for limited consultations by out-of-state practitioners without licensure. In evaluating the licensure requirements for the provision of telemedicine services in any state, healthcare providers need to carefully consider the nature and frequency of the services they will provide. For clinicians rendering telemedicine services in multiple states, this can be a time-consuming and costly endeavor.
Obtaining multi-state licensure is only part of the challenge for providers. Healthcare providers practicing telemedicine in multiple states are also required to adhere to the standards of medical practice in each state, and the state standards of practice vary considerably. For example, in Colorado, the practice of medicine is defined broadly and encompasses telemedicine. To guide physicians, the Colorado Medical Board has issued a specific rule for the appropriate use of telehealth technologies in the practice of medicine. However, other states have considerably less guidance available or have not issued any unique laws or regulations concerning telemedicine services.
To add to the complexity, there is no one consistent location for a provider to find the applicable rules. In some states, these rules are found in statutes and regulations. In other states, they may be found in the rules, policies, and procedures of the state licensing boards. The standards of practice govern such critical issues as the establishment of a physician/patient relationship, informed consent, the standard of care for a telemedicine encounter, and e-prescribing. It is imperative that healthcare practitioners understand the regulatory landscape in all the states in which they practice.
Awareness of other laws
Healthcare providers also need to be aware of federal and state laws governing the privacy and security of medical information and ensure the technology they are using in the provision of telemedicine services complies with applicable laws. In addition, the availability of reimbursement for telemedicine services varies widely from state to state and should be considered when structuring any arrangement for the provision of telemedicine services. The Medicare Anti-Kickback Statute and the Physician Self-Referral law (also known as the Stark law) and similar state laws may also apply to arrangements for the provision of telemedicine services. Lastly, the prohibition on the corporate practice of medicine that exists in certain states may also impact what type of entity may provide telemedicine services.
While the provision of telemedicine services has the potential to offer significant benefits to the general population, the government, and the healthcare industry through reduced costs and increased access to care, the technology is advancing at a faster pace than the law.
Healthcare providers engaged in the provision of telemedicine services need to be vigilant in their adherence to current regulations and stay informed of ongoing changes in the law in this evolving area.
Marcie M. Damisch, JD, LLM, is a shareholder in Stradling’s Corporate practice group. Her practice is focused on the representation of healthcare providers and related entities.