By: Mathew J. Levy, Esq. & Stacey Lipitz Marder, Esq. Email the Author
It is undisputed that telemedicine is the future of medicine. Telemedicine eliminates distance barriers giving providers the opportunity to render services offsite, as well as to use electronic interactive technologies to assess, diagnose and/or treat medical conditions when patients are not physically present. While these advances offer opportunities to improve the delivery of health care, they also present challenges to practitioners. While many healthcare providers are eager to jump on the telemedicine bandwagon, there are many legal and regulatory issues to take into consideration concerning this cutting edge area. Prior to pursuing telemedicine ventures, providers should assess the many legal challenges affecting telehealth in order to minimize risk and maximize reward. We have highlighted several of these issues below.
Standard of Care/Liability:
Regardless of whether a patient is seen physically in a provider’s office or via electronic interactive technologies, the same standards of care apply for medical practice if the provider-patient relationship is deemed to exist. The provider-patient relationship is established if the patient receives professional advice or treatment, whether in person or via electronic means. Therefore, there is the same expectation of quality of care in the telemedicine context as in traditional medicine. Although technology has certainly improved over the years, it is questionable whether the same level of care can be given when a patient is not seen in person as some aspects of a patient exam cannot be replicated electronically.
Providers must also ensure that they identify themselves to the patients. In New York, providers are required to display their license and current registration at the practice site. Therefore, prior to rendering patient care, a provider must verify that he/she is the licensed provider he or she purports to be. Providers must also ensure that they adhere to ethical obligations, including being available for follow-up care.
It is the location of the patient that defines where the care has been delivered and the applicable jurisdiction. If a patient is located in New York when care is rendered, the provider must be licensed and currently registered in New York. Telemedicine makes it easy to practice medicine across state lines. Therefore, it is imperative that providers rendering services in the telemedicine context establish where the patients are physically located in order to ensure that they are able to render services in that state. Practicing medicine without a license is a serious offense, and may constitute the illegal practice of a profession.
The development of telemedicine presents particular challenges to the provider in assuring that the integrity and confidentiality of the provider-patient relationship is maintained. All technology utilized should be HIPAA compliant, especially if patient protected health information is being transported via electronic means.
In telemedicine, as in face-to-face encounters, a medical record must be created and maintained. The medical record is an essential document, and must accurately reflect the encounter. Relevant components of the electronic professional interaction must be documented as with any other encounter. The failure to meet the medical record standard can impact a provider’s license, as well as the outcome of a medical malpractice case.
While telemedicine makes it easy for a physician to retain the services of outside providers to render medical services off-site, the rendering of services off-site may present limitations when it comes to billing Medicare for diagnostic services (technical and professional components). As per the anti-markup rule, a medical practice is prohibited from profiting from diagnostic tests when diagnostic services are not performed, supervised or interpreted by the ordering physician and the provider performing or supervising the test does not share a practice with the billing provider. Where services are rendered is one factor to consider when determining if a practice is shared.
Effective January 1, 2016, New York law now requires insurers to offer the same reimbursement to patients who receive services via telehealth and telemedicine as if it were done in person. However, it is unclear if insurers will be required to cover new telehealth services if those services are not currently covered under the health plan policy as in-person services.
Telemedicine is an exciting field that has the potential to change the face of healthcare. In order for providers to maximize the benefits that can be attained through telemedicine, it is recommended that providers have their telemedicine practices evaluated in order to identify and limit risk. Failure to structure telemedicine practices appropriately increases exposure as it relates to malpractice, licensure and third party reimbursement. Once potential issues are identified, providers can then take the appropriate precautions and implement the necessary policies and procedures in order to ensure that the standard of care is not diminished and that services are being rendered in compliance with applicable law.
Mathew J. Levy is a Partner of the firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has particular experience in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, healthcare fraud & billing fraud, insurance carrier audits including prepay and post payment review, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-627-7000 or email: [email protected].
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