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Telehealth News

How Legal, Regulatory Challenges Limit Telehealth Adoption

By Kyle Murphy, PhD

- A new report by the American Hospital Association (AHA) provides insight into the myriad legal and regulatory challenges in the way of increase telehealth adoption and use.

The American Hospital Association highlights legal, regulatory challenges for telehealth.

"Without adequate reimbursement and revenue streams, providers may face obstacles to investing in these technologies. This may be especially detrimental to hospitals that serve areas where the need for these services is greatest," the AHA report states of one of the greatest challenges — coverage and payment.

While private payers have make significant advances in their use of telehealth services, Medicare lags behind as a result of regulatory restrictions that only Congress is able to remove, such as geography and practice setting limitations. In order to telehealth adoption to play a part of delivery system reform, these obstacles need to be addressed. Efforts by the Center for Medicare & Medicaid Innovation (CMMI) prove that waiving provisions of Medicare statute is "necessary to test payment and delivery models."

A longstanding issue for providers wanting to make use of telehealth services is licensure. The AHA report highlights the need for current state laws to evolve in order to prevent regulation from stifling innovation.

"Because current state licensure laws may not reflect the changing nature of medical practice and the growing use of technology, existing licensure laws could unintentionally present barriers to the opportunities and innovations of telehealth," it states.

Numerous exceptions — consultation or border state exceptions — provide workarounds for state-by-state licensure requirements but aren't solutions to a larger regulatory problem. The Federation of State Medical Boards Interstate Medical Licensure Compact is one example of how states can go about addressing issue of physician licensure.

Licensure issues are often followed by challenges related to credentialing and privileging according to the AHA report:

In the telehealth context, credentialing and privileging issues may arise because services usually involve two or more health care facilities. For hospitals acting as originating sites, a longstanding problem has been whether they must directly credential and privilege each practitioner providing telehealth services, or may rely on the credentialing and privileging decisions of other hospitals or entities providing  telehealth services (known as “credentialing by proxy”).

The report states that changes to Medicare Conditions of Participation (CoPs) but still require originating site hospitals to meet numerous conditions and take other steps to protect themselves from claims of negligence in credentialing.

Electronic prescribing has emerged as another barrier to more widespread telehealth adoption as a result of state regulation. The legal case between Teladoc Inc. and the Texas Medical Board over the conditions necessary for e-prescribing using telehealth technology serves as an example.

Additionally, the Federal Drug Enforcement Administration (DEA) plays a role in overseeing the dispensing of medications via online services:

The specific restrictions on the “practice of telemedicine” with respect to prescribing controlled substances may cause hospitals to limit or discourage their employed physicians from prescribing controlled substances via telehealth, which could hamper important services such as telepsychiatry.

Similarly to licensure, medical malpractice and professional liability could become sources of concern for potential telehealth providers:

There are many unresolved issues and questions regarding malpractice liability as it relates to practicing in the telehealth setting, including the nature of physician-patient relationships, informed consent, practice standards and protocols, supervision and provision of professional liability insurance coverage.

The remaining challenges fall into two areas: privacy and security and fraud and abuse. Regarding the former, expanded use of telehealth services could expose sensitive health data to unforeseen privacy and security risks. Telehealth providers will need to address these through risk analyses and update privacy and security policies and practices.

As for fraud and abuse, telehealth use could make healthcare providers liable under federal and state laws concerning false claims and kickbacks. Moreover, variation in federal and state fraud and abuse regulation creates a rather confusing environment for making telehealth arrangements.

Read the full report here.

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