Telehealth: The Basics Every Physician Should Know
Telehealth (formerly "telemedicine") has been around for some time; however, in 2007 and 2008 alone there has been more than a dozen new developments in the law across the country over each one-year period. Telehealth and the laws that govern it are rapidly evolving and on the agenda of legislators and government regulators. Healthcare practitioners need to stay aware of statutory, regulatory and case law developments in all jurisdictions into which each physician is reaching through telehealth.
In California, the Telehealth Advancement Act of 2011, revises and updates existing law (Telemedicine Development Act of 1996) to facilitate the advancement of telehealth as a service delivery mode in managed care and the Medi-Cal program. In California, Telehealth is the practice of health care delivery, diagnosis, consultation, treatment, transfer or medical data, and education using "interactive" audio, video, or data communications.
The term "interactive" means an audio (telephone), video (also includes internet therapy), or data communication involving a real time (synchronous) or near real time (asynchronous) two-way transfer of medical data and information. This law repealed and replaced section 2290.5 of the California Business and Professions Code to do the following:
- * Defines "Asynchronous store and forward" as the transmission of a patient's medical information from an originating site to the health care provider at a distant site without the presence of the patient.
- * Defines "Distant Site" as a site where a health care provider is located while providing services via a telecommunications system.
- * Defines "Originating Site" as a site where a patient is located at the time health care services are provided via a telecommunications system or where the asynchronous store and forward transfer occurs.
- * Defines "telehealth" as the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient's health care while the patient is at the originating site and the health care provider is at the distant site. This section does not alter the scope of practice of any health care provider.
All laws regarding the confidentiality of health care information and a patient's rights to his or her medical information shall apply to telehealth interactions. This bill also applies the Business and Professions Code Section to the laws relating to Health Care Service Plans and to the Insurance code and requires health care service plans and health insurance companies to adopt payment policies to compensate health care providers who provide covered health care services through telehealth. This bill also applies these requirements to the Medi-Cal managed care program.
Physicians using telehealth technologies to provide care to patients located in California must be licensed in California and must provide an appropriate prior exam to diagnose and/or treat the patient. Physicians practicing via telehealth are held to the same standard of care, and retain the same responsibilities of providing informed consent, ensuring the privacy of medical information, and any other duties associated with practicing medicine.
It is important to remember that "telemedicine" is counseling or psychotherapy done from a distance. Hence, the therapist may be in his or her office in San Diego and the client may be in San Francisco, or Redding, or Cucamonga. This is different from the traditional course of therapy where clients are physically present with their therapists, most commonly in the therapist's office.
For lack of a better term, let us call these physically-present patients "traditional" patients as opposed to "distance" patients. With traditional patients, the issue then arises about whether the telemedicine law prohibits a therapist from interacting with a traditional patient outside of sessions via the telephone or e-mail. The answer is "no." The telemedicine law specifically excludes from the definition of telemedicine telephone conversations and e-mails occurring between practitioners and what I have called traditional clients. These telephone conversations or emails could be about something as simple as verifying appointment times, or as complex as calming down a distraught patient. So long as the patient is a "traditional" one and not a "distance" one, you can interact with that patient via email or telephone as needed to further the patient's therapy without running afoul of the telemedicine law. Moreover, traditional clients do not need to sign the informed consent document addressed in this article for you to communicate with them outside of sessions via email or telephone.
If you choose to practice telemedicine, Section 2290.5 of the California Business & Professions Code requires you, if you are the health care practitioner who has ultimate authority over the patient's care, to make certain disclosures, both verbally and in writing, to the patient before any services are rendered to such patient.
Every practitioner should be aware of the explicit and implicit healthcare practitioner licensing statutes or regulations that may create heightened licensing or practice requirements for each jurisdiction that the physician seeks to reach through telehealth. There may be additional permits or licenses, and additional practice requirements that may be imposed on any physician who uses telehealth within the state or reaches into the state through telehealth. Other issues of telepharmacies, internet pharmacies, and electronic prescriptions are heavily intertwined with telehealth activities, so, physicians must be aware of the state and federal regulation and enforcement efforts aimed at these activities.
In addition to licensing, heightened standards of care, prescribing, and reimbursement issues unique to telehealth, there are malpractice, liability, fraud and abuse, ethical and international issues unique to telehealth.
Further, there are issues of reimbursement in interstate and intrastate telehealth programs. The most common restriction in federal, state and private-payor reimbursement is that medical encounters are not considered "medically necessary and appropriate" if the physician was not in face-to-face contact with the patient. However, Medicare has a few exceptions to the "face-to-face contact" requirement, but with strings attached.
An experienced healthcare attorney can help the healthcare practitioner understand these unique issues and how they apply to the particular practitioner's practice. In addition, a qualified healthcare attorney can help guide the healthcare practitioner in using this increasingly necessary and beneficial tool in order to maximize the quality of care and fiscal benefits for any medical practice. Contact Attorney Kolah for a consultation.