Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

Summer is almost upon us. And in between the BBQs, pool parties, and baseball games, you might be trying to understand the risks involved in offering healthcare services through telehealth. Whether you're an independent physician or practitioner, part of a hospital or physician group, or working for a telehealth platform provider, there are a number of things to consider.

Colorful flags on the beach

Below is our top-five list of telehealth legal issues for this summer. Give us a call at +1.202.739.5260 if you have any questions or simply would like to talk through any of the areas below.

  1. Fraud - After a recent major bust by federal authorities, the talk of the telehealth town has been on avoiding these situations in the future. We ranked this issue first in our list because of the very real possibility of jail time for the telehealth company executives and the licensed medical professionals involved in this conduct. Not only is it important for telehealth providers to understand the laws that apply to them, they must also vet with whom they are doing business. If an arrangement seems too good to be true, it probably is!
  2. Payment - The telehealth industry has worked tirelessly over the last decade to develop profitable and sustainable business models. This has led to many changes in law, particularly at the state level, that help protect the negotiating power of telehealth providers when dealing with insurance companies (coverage/payment parity laws). The current battlelines for telehealth reimbursement are forming on the federal level, where Medicaid and, to a greater extent, Medicare have not covered telehealth services in the same way that commercial payors have. If you have not considered Medicare/Medicaid in your future telehealth operations, you should learn more about impending Medicare Advantage coverage and what you can do to further advance federal reimbursement for telehealth.
  3. Modalities – Live audio/video encounters have, for many years, been a widely accepted method for a doctor to treat a patient. In fact, every state at this point permits physicians to visit patients through real time interactive audio/video without someone physically present with the patient (known as a telehealth presenter). But after live audio/video, there is significant variability in what types of telehealth modalities states allow. For instance, many states have specific rules on asynchronous communications (store and forward technology), interactive audio (without video), and remote patient monitoring. This is ultimately a mixed bag for telehealth providers as some prefer, for both business reasons and for quality of care, to maintain current requirements for audio/video, while others, in an effort to drive costs down, prefer the flexibility of non-real time telehealth interactions.
  4. Licensure – While licensing, in the context of a brick-and-mortar operation, is a simple issue (get a state license before you see a patient and make sure it doesn’t expire), licensing in the telehealth context is often more complex. Given that most telehealth platforms may not know where their next patient is coming from (or where they are actually located), maintaining licensure for all 50 states can be daunting and administratively burdensome. Enter the Interstate Medical Licensure Compact (IMLC), which, if fully implemented by various states, could permit physicians with a valid license in one of the compact states to perform services remotely in another compact state. Is your state considering adoption of the IMLC? You may want to reach out to your state reps to discuss the benefits that adoption might mean.
  5. MedMal Liability – Us regulatory lawyers often overlook the impact that medical malpractice liability issues can have for a healthcare organization. Telehealth providers are particularly susceptible to medical malpractice liability because of possible technological issues that could impact how treatment decisions are given or understood. Like the old game of telephone, it is possible (although increasingly less likely) that important details can be lost in translation. Importantly, state medical boards routinely explain that the standard of care between in-person and telehealth services is the same. And this is an important concept for both medical malpractice and state board licensing actions. Telehealth providers should fully understand the technology they are using, the limits of that technology, and the process for referring patients to other providers when treatment may be complicated by the medium. We all want to provide the best, most efficient service to our clients, but understanding limits (both personal and technological) will ultimately result in better care and less legal exposure.