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Is Telehealth Ready for Its Day in Court?

Speaking at this week's ATA conference, one of the nation's top telemedicine attorneys says the industry needs to gets things right with the lawyers, or face the consequences.

By Eric Wicklund

- That next new telehealth program had better include a lawyer in the planning stages.

Faced with the fear of a rapidly evolving industry that isn’t keeping up with its legal requirements, the American Bar Association stepped up its presence at this year’s American Telemedicine Association conference and trade show. And one of the nation’s top telemedicine attorneys says that’s going to be the norm from now on.

The telemedicine ecosystem “is uncharted territory from a legal perspective,” says Nadia de la Houssaye, an ABA member from the Jones Walker law firm who presided over a Saturday symposium at the ATA conference in Minneapolis. “It’s a very gray field right now.”

De la Houssaye says she worries that health systems aren’t taking a serious look at their liabilities under telemedicine, and that sooner or later the industry will see an onslaught of medical malpractice suits and fraud cases. At a time when telemedicine, according to the ATA, is on the cusp of the mainstream, that kind of negative attention could be disastrous.

So the ATA and ABA are partnering to make healthcare providers aware of the rules and regulations, starting with the ATA conference and continuing with a series of webinars. Aside from de la Houssaye, a number of high-profile telemedicine attorneys were on hand at the meeting, include ATA board member Alexis Gilroy of the Jones Day law firm, Clinton Mikel with the Health Law Partners and Julian Rivera of Husch Blackwell.

De la Houssaye advises telehealth programs - both new and established - to get acquainted with their attorneys, and to look at informed consent as a necessity rather than “just another burden.” In many cases, she says, they’ll need to have a good, long talk with their insurance carriers.

“Many of the insurance policies out there don’t even mention telemedicine,” she says.

As is often the case with an up-and-coming industry, telehealth is moving faster than the regulatory framework around it – think of the “wild, wild west” of the mHealth app landscape and the ongoing efforts of the FDA and FTC, among others, to rein it in. Health systems who launch telemedicine programs across state lines have to be cognizant of the laws not only where they are, but especially where their patients are located. A hospital in New Hampshire, for example, can get in some very serious trouble if it’s treating a patient in Arkansas and doesn’t know the ground rules there.

De la Houssaye also tells health systems to treat telehealth as a delivery model that’s integrated into the normal routine of care, rather than something set off to the side. It’s important, she says, to show that this platform is accepted and established, rather than unique and individual.

And expect things to change, she says. Healthcare providers are going to be expected to have telehealth on hand. A health system that isn’t using telehealth, and which sees a less-then-ideal clinical outcome because it isn’t using the technology, could very well face a lawsuit.

“It’s going to happen” she says. ‘It’s inevitable.”

Dig Deeper:

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