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Will Physician Telehealth Consultations Cross State Borders?

By Vera Gruessner

- Due to the rise in new technologies affecting everyday aspects of life, the healthcare industry has jumped on the bandwagon in order to better engage with its consumer base. With many individuals glued to their smartphones, tablets, or computer screens and reliant on these tools for a wide variety of functions such as communication, alerts or reminders, picture-taking capabilities, and video-based conferences, it only makes sense that physician telehealth consultations are becoming standard methods for communication for healthcare providers.

Telehealth Security Policies

Along with standard mobile health apps and wearable devices associated with smartphones, physician telehealth consultations are an important and expanding area of care that improves access to doctors and healthcare services among patients living in rural areas and facing physician shortages.

The telehealth space, however, must overcome some legal barriers in order to truly grow throughout the nation. States tend to have separate regulations regarding physician telehealth consultations. To learn more about recent progress in telehealth laws, spoke with John Arnold, a Healthcare Regulatory Attorney with the law firm Waller Lansden Dortch & Davis, LLP.

What is the latest progress in payment parity laws for the telehealth field? What states are currently implementing payment parity?

John Arnold: “This question is at the forefront of a lot of people’s thinking right now in telehealth. Telehealth parity can be broken down further into coverage parity and payment parity. Providers and hospitals are not only interested in whether telehealth services will be covered but also whether or not they will be reimbursed at the same level as in-person services.”

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“Despite its potential advantages to patients in the healthcare delivery system, providers often lack an incentive to invest in new technology and take steps necessary to develop telehealth programs that will benefit patients when there’s no financial return on the backend.”

“States are gradually starting to roll these out but it’s slow. Delaware, for example, has just enacted a payment parity law that is perhaps one of the better laws that we’ve seen across the country in terms of comprehensiveness.”

What are the most important data security policies healthcare providers using telemedicine need to adopt?

John Arnold: “HIPAA is obviously top of mind when you’re talking about patient-protected health information and data security. What you’re seeing a lot now on the telehealth front are vendors and service providers who are branding themselves as HIPAA-compliant. The question always becomes – what does that mean?”

“When you dig a little deeper, a lot of times you find out that the services being provided are not always best practices. You’ll find vendors who are HIPAA-compliant, but when you dig deeper, their software is not always encrypted.”

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“Encryption is the gold standard when you look at patient privacy and telehealth. You’re going to have backend issues when patients use their own mobile devices, but from a provider’s perspective, encryption is a critical component when you’re dealing with telehealth on a large scale.”

Should telehealth use expand beyond state borders? What legislative changes or organizational support has stimulated the expansion of telemedicine beyond state borders?

John Arnold: “The Federation of the State Medical Boards has issued model guidelines for regulations governing the use of telemedicine on the physician side. We are moving from a patchwork of state laws to some uniformity and consistency in states that are taking a more progressive approach to telehealth and promoting telehealth as opposed to insulating the medical profession in their state in a protectionism approach.”

“Even though some states are taking a more progressive approach and we are starting to see some sort of uniformity, the patchwork of state laws still presents a big challenge to a provider in Tennessee, for example, treating a patient in California when the provider is not licensed to practice in California. As a general rule, the location of the patient governs where the provider needs to be licensed.”

“States are trying to tackle this issue, but at the same time, the medical boards will tell you they have a duty to protect the safety and welfare of the citizens of their state.”

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How is the growth of the telemedicine field and remote monitoring technology affecting healthcare legislation?

John Arnold: “There are movements on the state and federal level to promote telehealth and support telehealth’s development. In states where companies such as Teladoc or MDLive are providing services, when there’s no clear law on the books in terms of what’s permitted, the law develops as a result of people practicing telehealth.”

“The law is somewhat reactionary right now to the emergence of telehealth. At the same time, we are fielding questions on a regular basis about what’s permitted and what’s not permitted – can I prescribe for this patient or not?”

“The law is not as complete as providers of telehealth services would hope at this point. However, this creates an opportunity to shape and mold the law based on what works in telehealth and what doesn’t work.”

“What we’re seeing on the state level right now is exciting but, at the same time, the rules are often promulgated by medical boards, which can be somewhat restrictive in nature and limit the full potential of telehealth.”

“On the federal level, things are changing with respect to reimbursement. CMS (Centers for Medicare & Medicaid Services) is gradually expanding Medicare coverage for telehealth services.”

“Strict restrictions still exist under Medicare for the geographical areas in which telehealth services can be provided and reimbursed, but we are seeing growth from both the Medicare and Medicaid perspectives. States are providing coverage for telehealth services. That’s often where the parity legislation starts – on the Medicaid front and carries over to the commercial side.”


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