By: Alexandra Marlowe
2020 was a year of unprecedented change, including the rapid expansion and adoption of telehealth and telemedicine. As COVID-19 raged on, and stay-at-home orders rolled out, many physicians and medical professionals turned to telehealth and telemedicine services to deliver care to their patients. According to a 2020 McKinsey & Company study, consumer adoption of telehealth increased from 11% in 2019 to 46% of consumers now utilizing telehealth services instead of traditional healthcare visits. Additionally, providers are seeing 50 to 175 times the number of patients via telehealth platforms compared to 2019, supporting the notion that the field has swiftly grown.
Telehealth and telemedicine offer considerable advantages, including improved convenience, greater access to specialty services, and reduced cost for healthcare systems. However, experts caution that as the field grows, the profession needs to consider legal and compliance issues related to providing remote care. Considerations range from fundamental issues such as defining telehealth and telemedicine, to more complex problems with licensing, reimbursements from insurance companies, and privacy concerns. To avoid legal risks to physicians and potential negative consequences to patients, the following concerns should be promptly addressed.
One of the fundamental concerns is how telehealth and telemedicine ought to be defined.
For example, the American Medical Association defines telehealth as the “use of electronic information and telecommunications technologies to support a broad scope of remote health care services,” and telemedicine as permitting “two-way, real-time interactive communication between a patient and a physician.” Telehealth is the broad scope of health care services, such as visits with nurse practitioners, psychologists, or physical therapists, while telemedicine should only be used to describe the virtual interaction between a physician and a patient.
Yet, despite the distinct definitions, the terms are often used interchangeably, creating confusion about which service is being utilized. Consistent definitions and usage are critical to determining the applicability of existing laws and regulations. To mitigate the current confusion, the profession needs to establish standardized definitions and then employ those definitions consistently for use across the profession, with patients, and insurance companies.
The second significant consideration is licensing medical professionals. Broadly speaking, to practice medicine an individual is required to obtain a license, which is ultimately a state law issue. Licensing laws for telehealth services are not based upon the location of the physician, but instead on the location of the patient at the time of their appointment. For instance, if a Massachusetts licensed physician provides telehealth services to a patient located in California, the physician is required to also have a medical license in California, or otherwise satisfy an exception to the medical license requirement. Now more than ever, licensing laws create a cumbersome challenge to the field of telehealth, particularly as more patients seek out particular specialists who may be out of state.
In an effort to overcome this challenge, the Interstate Medical Licensure Compact (“Compact”) has aided in streamlining the licensing process for physicians who wish to practice in multiple states, enabling more physicians to provide telehealth services. The Compact is comprised of 29 states with additional states likely to join as they progress through the process of adopting the Compact. Those states participating in the Compact can simplify the licensing process by using expedited information-sharing between states. This expedited process, if adopted by all United States jurisdictions, could ensure physicians are satisfying jurisdictional requirements, while also enabling patients to seek out physicians that they otherwise would not have the opportunity to see in a traditional in-person setting.
Another primary concern for utilizing telehealth is insurance coverage. Reimbursement for telehealth services varies widely across insurance plans at the federal and state levels. For example, the federal government regulates coverage and reimbursements of telemedicine services for Medicare plans and self-insured plans, while states regulate Medicaid and fully-insured private plans. This intricate regulatory framework makes it difficult for physicians to know what regulations they must abide by, and for patients to understand what services are covered by their insurance plans. This uncertainty could harm patient health outcomes as it could deter patients from using telehealth services for fear of medical expenses.
As a result of COVID-19, the federal government, some states, and even health insurance carriers, have taken steps to loosen regulations to permit more telehealth visits to be covered by insurance policies. While these steps are necessary to ensure patients across the United States have access to health care services, particularly during a global pandemic, there are additional hurdles that must be overcome. For instance, even if the federal government loosens telehealth and telemedicine restrictions, most states have laws pertaining to these services.
Therefore, states also need to lift some of their constraints to give more patients crucial access to telehealth services. To better assist both patients and physicians, the federal government, state governments, and insurance carriers should make concerted efforts to tailor telehealth and telemedicine coverage to meet the needs of patients in the long run, not just in the short-term.
Moreover, like most technologies used today, telemedicine fosters privacy concerns. Telemedicine must comply with all Health Insurance Portability and Accountability Act (“HIPAA”) requirements. To ensure compliance, physicians must take patient visits in locations where no one else can overhear the virtual appointment, have fully encrypted data transmission, and provide secure connections. Experts emphasize that physicians working with third parties for their telehealth and telemedicine technology should require those parties to be compliant with HIPAA regulations, likely through a contractual arrangement. While HIPAA compliance is routine for physicians and the medical field more broadly, as with any technology, there are risks for data breaches or other wrongful disclosures that must be addressed.
Lastly, as the federal government and state governments continue to make regulatory and policy changes to the field of telehealth, it is vital to emphasize telemedicine training for those physicians that decide to opt into the service. The pandemic brought a haste shift to telehealth and telemedicine services, however, many providers were not prepared for the transition. The lack of preparedness is evidenced by the fact that only 24% of U.S. healthcare organizations had pre-existing virtual care programs established prior to January 2020.
Implementing training programs can assist physicians in delivering telemedicine services that comply with applicable federal and state laws, as well as ensure that they deliver the most comprehensive care possible in this new environment. Creating a virtual environment that is similar to in-person visits can smooth the transition for patients adapting to this new normal and help foster trust in the services provided.
The above list of telehealth and telemedicine concerns is not exhaustive, indicating that while the technology has the potential to improve the health care system in the United States, including addressing health inequalities, there is a need for further policy changes at both the federal and state levels. If these regulatory and policy changes are addressed, there is a fruitful opportunity for the field to make health care accessible to more people and improve the quality of health care services, all while doing it in a more convenient manner for the patient and provider.
Student Bio: Alexandra Marlowe is a second-year law student at Suffolk University Law School and a Staff Member on the Journal of High Technology Law. She is interested in pursuing a career in employment law. Alexandra holds a B.A. in Political Science and minors in Psychology and Philosophy from Wheaton College (MA).
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
