Lobbying Affiliate: MML&K Government Solutions

Telehealth News Is Telling of the Future

Practice Areas

August/September 2014

Kentuckydoc, August/September 2014

In April, the Federation of State Medical Boards ("FSMB") adopted a Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine (the "Model Policy"). The Model Policy defines telemedicine as the "practice of medicine using electronic communications, information technology or other means between a licensee in one location and patient in another location, with or without an intervening healthcare provider." The Model Policy addresses many of the concerns of state medical boards in addressing telemedicine practice, including establishing a physician-patient relationship, appropriate online medical care, HIPAA compliance and patient privacy, and prescribing based upon a telemedicine encounter.

Following on the heels of the Model Policy, in June, the American Medical Association ("AMA") approved "guiding principles" regarding provisions of medical services offered through telecommunications technologies. These principles stem from a previous policy report developed by the AMA's Council on Medical Service that addresses the appropriate coverage of and payment for telemedicine services. Unlike the Model Policy, the AMA's guiding principles do not propose a definition of telemedicine, but rather address the term in three broad categories: real-time interaction through an online portal; remote monitoring through mobile devices; and store-and-forward practices.

The Model Policy and guiding principles represent a growing recognition in the industry that telemedicine's time has arrived in health care and standards and regulations are needed to support its growth and efficiency. Even Capitol Hill has taken notice. Three legislative bills on telehealth services are currently being debated in committees of the House of Representatives. The Telehealth Enhancement Act of 2013, H.R. 3306, proposes to expand Medicare coverage of telemedicine. The TELEmedicine for MEDicare Act of 2013 ("TELE-MED"), HR 3077, proposes to allow telehealth across state borders and eliminate state licensure barriers for telehealth services. The Telehealth Modernization Act, HR 3750, attempts to create a standard definition of telehealth services and set guidelines for telehealth services.

Closer to home, in 2013, Kentucky's Department of Medicaid Services ("DMS") issued final rules expanding the coverage of telehealth-provided services for Medicaid beneficiaries. KRS 311.550(17) defines telehealth as "the use of interactive audio, video, or other electronic media to deliver health care. It includes the use of electronic media for diagnosis, consultation, treatment, transfer of medical data and medical education." Currently, 46 states offer some type of Medicaid reimbursement for services provided via telehealth, despite different payment practices and definitions of services from state to state.

While there is clearly a lack of consistency in telemedicine definitions and policy, no one can deny the momentum of telemedicine. The Affordable Care Act has resulted in millions of newly eligible insurable Americans seeking access to an already strained health care system. There is a serious shortage of primary care providers nationwide and, as Kentucky physicians know, access to care in rural areas is a continuing challenge. Telemedicine is poised to take center stage as a tool to combat the primary care and specialist shortage in rural areas. Video encounters, mobile health, and remote monitoring, among other tools, can extend the reach of health services, result in greater patient adherence to care plans, increase proactive engagement, reduce hospital readmissions, and improve patient satisfaction. Health care has come full circle: it is now possible for physicians to once again make house calls - this time, through telehealth technology.

IT developers, compliance managers, institutional providers, and individual physicians engaged in telemedicine should take a closer look at both the Model Policy and guiding principles, along with existing state law, to understand the standards and principles that should accompany any telehealth service.

The Model Policy includes a number of disclosures and functions that should be included in telemedicine platforms, such as a method for patient feedback, a way to access and amend patient records, and a domain name that accurately reflects the online provider's identity. The Model Policy also provides several words of caution. For instance, it warns against physicians benefitting from pay-per-click arrangements and suggest limiting medication formularies to "ones that are deemed safe" by the state board in the absence of any physical examination.

The AMA guiding principles touch on a few issues not addressed by the Model Policy, such as medical liability insurance. While AMA does not approve or disapprove of any specific technology, it does make the following recommendations for the delivery of health care services via telemedicine:

It is too early to tell whether all states will adopt the Model Policy, AMA's guiding principles, some combination of the two, or their own standards entirely. But state medical licensing boards must realize it is time to do something in the way of telemedicine. As technology increasingly finds its way into health care, it must be accompanied with thoughtful and thorough policy so that both providers and patients can be assured that telemedicine is delivered with same quality as in-person care.

This article is intended as a summary of newly enacted federal and state law and does not constitute legal advice.

Lexington, KYLouisville, KYFrankfort, KY: MML&K Government SolutionsWashington, D.C.