Legal and Compliance Concerns in Telemedicine and Other Healthcare Technology in 2016

mobile-phone-in-hand-1438231-1-mHigh on the list of trends in the healthcare industry in 2016 is the advancement of technology in the diagnosis and treatment of disease and medical conditions. According to a recent online article in Healthcare Finance, thirty-two percent of consumers in 2015 had at least one health, medical or fitness app on their mobile devices. Such apps can be useful for primary care and chronic disease management, among other areas. Telemedicine will continue to grow in 2016 as well, with physicians and other health providers consulting and treating patients remotely. Providers increasing their use of technology can expand the geographic reach of their practice to include a greater number of patient consumers. Indeed, the Affordable Care Act anticipates and encourages the use of telemedicine and other remote technologies as an efficient and cost-effective method for expanding the reach of healthcare services.

Of course, with the increasing use of technology in healthcare comes attendant legal and compliance concerns, ranging from issues of patient privacy and cybersecurity to state regulatory and medical ethics requirements governing patient care, billing and reimbursement.

Providers considering increasing their use of telemedicine and other technology in the provision of services should first evaluate the legal and regulatory issues carefully, understanding that federal and state entities have specific definitions, compliance and legal requirements governing these practices. Some concerns as to this mode of healthcare delivery are as follows:

  1. Telemedicine is defined and regulated differently by CMS and various state laws. For example, the Centers for Medicare and Medicaid Services (CMS), which has particular billing requirements specific to telemedicine, defines telemedicine to include real-time, two-way interactive communication between a patient and a physician located at a different site. Various state laws may define and regulate telemedicine differently, and their practice requirements should be examined carefully to promote compliance.
  2. Licensing requirements vary among states for physicians and other providers practicing remotely or across multiple states. Because state laws and licensing requirements concerning medical and other healthcare practice evolved independently, practice and other licensing requirements for telemedicine and other healthcare technology can be inconsistent from state to state and for multi-state practices. For example, some states require physicians to obtain special permits to practice telemedicine, even within the same state where their physical practice is located. Licensing exceptions can exist for physicians practicing in multiple states. Of course, physicians are not the only providers affected by licensing requirements. Non-physician providers considering expanding their practices in telemedicine or increased use of technology should consider these requirements carefully in advance.
  3. Laws and regulations for telepharmacies, internet pharmacies and electronic prescriptions are evolving. State and federal laws vary as to requirements for remote prescribing and dispensing. Some relevant concerns are provider liability and the establishment of an appropriate physician-patient relationship. Providers are subject to criminal prosecution for violating laws concerning remote prescribing. For example, in the 2007 California case of Hageseth v. Superior Court, following the death of a Stanford student from a drug overdose, a court allowed the state of California to prosecute criminally under California’s telemedicine laws, a Colorado physician who prescribed Prozac to the student remotely after evaluating the student’s need for the prescription using an internet questionnaire. See Hageseth v. Superior Court (People) (2007) 150 Cal.App.4th 1399 [59 Cal.Rptr.3d 385]
  4. Depending on the nature of the practice, numerous other legal and regulatory concerns impacting telemedicine and other health-related technology should be considered. These concerns may include patient informed consent, privacy protection for medical records, hospital licensing and other legal requirements, physician-patient relationship, contractual arrangements, reimbursement and standards of care pertinent to medical malpractice.

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Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.

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