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How Telehealth Legislation Creates Tension in Healthcare

By Kyle Murphy, PhD

- A multitude of regulatory factors and perspectives need to be taken into account for the use of telehealth services to expand and become more widespread across the United States. The sheer number of rules and regulations for the practice of telemedicine creates a tension that if not addressed directly could undermine the growth of the telehealth industry.

McDermott Will & Emery Partner Dale Van Demark talks telehealth legislation

If you take a look at one jurisdiction's law on telemedicine, you really get one definition of telemedicine," McDermott Will & Emery Partner Dale Van Demark tells "While it may have many similar components to the definition of telemedicine in the different jurisdictions, chances are good that it is not. While there's overlap, they're not identical."

Within the liminal spaces, Van Demark observes a consistent "degree of tension" as the telehealth laws of two or more states come into contact.

"Those who are proponents of the development of telemedicine and telehealth will point to that central issue as being problematic in the development of telemedicine," he continues, "because it makes it much more difficult for a telemedicine company or endeavor to have a national, even regional, business model because of those licensing requirements."

According to Van Demark, the tension that occurs between states is not limited to those sharing a border.

"Technically, it's just as easy for a doctor in New York to treat a patient in New York via telemedicine as it is to treat a patient in California via telemedicine," he explains. "That encounter can occur just as easily within the state as it can cross borders, and so that issue has become much more apparent and much more important when it comes to healthcare that's delivered electronically."

As Van Demark observes,  the layers of telehealth legislation and regulation have not prevented some states from working together, such as the Federation of State Medical Boards (FSMB) and its Interstate Medical Licensure Compact:

The compact is a really interesting idea, and while there's been some criticism of the way it's structured by telemedicine organizations and supporters, it does have the virtue of creating a rational model that respects the state's interest in protecting its citizen by ensuring appropriate licensure while, at the same time, reducing that barrier that state licensure requires by essentially creating a system of reciprocity.

Even in its attempt at mitigating regulatory tensions between states, the compact only begins to scratch at the surface of the complexity inherent in telemedicine. Divining authority can be complicated.

"A problem with the regulatory structure is that government regulation comes from different parts of the government in different governments and it comes from legislation," says Van Demark. "And what you have to accept and appreciate about government is that an agency that was created to enforce a body of law, while it may have some discretion in terms of how it writes regulations and in terms of how it approaches enforcement, it can't change the law."

So it is that an important first step toward expanding the use of telehealth services centers on recognizing a regulatory landscape whose topography has many facets.

"When we talk about the regulation of telemedicine, we may point to one issue or an agency or even a group of agencies," Van Demark maintains. "But we have to recognize that with something like telemedicine, you're implicating a number of different laws and a number, accordingly, a number of different policy perspectives."

Despite this regulatory complexity, there are promising signs of change. For instance, the Centers for Medicare & Medicaid Services (CMS) in many ways is paving the way.

"The fact that you see that expansion at CMS  is a positive sign, and what you've seen in recent years (and pretty rapidly) is an expansion at the state level of state requirements for insurance companies when it comes to reimbursement, and that has happened pretty quickly and easily," Van Demark notes.

The work of CMS and FSMB proves that telehealth adoption can be promoted so long as the right stakeholders and regulatory bodies are called to the table.


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