Despite legal and regulatory uncertainties, the telehealth industry continues to grow. A 2017 survey of healthcare executives found that three-quarters of respondents offer (or plan to offer) telemedicine services.
Most also said they agree that hosting meaningful telemedicine services will be critical to the future success of their organizations. That’s because telehealth has the potential to expand a provider’s geographic footprint, save time and dramatically reduce barriers to care, among other benefits.
Still, adoption hasn’t been as widespread as anticipated. This is partly because the legal and regulatory landscape is complex, underdeveloped and constantly shifting, a situation that has led to numerous misconceptions. Understanding fact from fallacy about telehealth can help healthcare organizations better position themselves to take advantage of this practice.
MORE FROM HEALTHTECH: How telehealth programs can evolve to meet patient demands.
Fact: The Legal and Regulatory Framework for Telehealth Is Complex
To scale business across multiple states, a telehealth company must carefully review state laws, regulations and regulatory guidance in places where patients are located. Varying factors include licensing requirements and scope of practice issues (such as forming the provider-patient relationship, remote prescriptions and informed consent).
Healthcare providers (who are familiar with stringent regulations) should know that business models and contracts suitable for one state won’t necessarily work everywhere. Telehealth practices must be sensitive to the need for business arrangements capable of satisfying regulations across states.
Fact: Telehealth Isn’t Limited to Medicine
Although the terms “telehealth” and “telemedicine” are often used interchangeably, a variety of fields are using the technology.
There has been significant growth in the use of telehealth in optometry, physical therapy and dentistry. Regulatory boards have taken notice, and several states have enacted telehealth practice acts specific to different professions.
But some specialties aren’t convinced. The use of telehealth technology for optometry has received significant opposition from the American Optometric Association, as well as state optometry boards and associations. In response, some states have banned the ability to conduct telehealth eye exams to issue or renew prescriptions for eyeglasses or contact lenses.
Fallacy: Telehealth Can’t Support a Provider-Patient Relationship
In the past, a provider-patient relationship could be formed only in person through a traditional in-person visit. However, all 50 states have enacted laws or regulations that expressly allow the provider-patient relationship to be formed via telehealth technology.
Texas was the last state to change its policy in May 2017 when it enacted legislation that allows the physician-patient relationship to be established through a virtual visit. Still, the acceptable type of technology used to create the relationship varies by state. Some states require audiovisual synchronous technology; others are less stringent.
Fact: Reimbursement for Telehealth Is Lagging
Another reason for the delayed growth, some say, is telehealth reimbursement. Insurers, both private and public, can deny coverage, or reimburse telehealth services at a lower rate than comparable services delivered in person.
Telehealth practices must be sensitive to the need for business arrangements capable of satisfying regulations across states.”
Kyle Faget, Special Counsel, and Sunny J. Levine, Associate Attorney
Foley and Lardner
Medicare, for instance, represents a major percentage of overall healthcare spending but limits the scope of coverage for telehealth services. Under rules established by the Centers for Medicare and Medicaid Services, such reimbursement is limited by a patient’s geography (he or she must live in a rural area), a facility’s qualifications, the type of provider, and the technology or modality used (interactive audio-video that facilitates real-time interactions between the provider and patient).
Still, some change is in motion. In January 2019, CMS expanded coverage for certain “communication technology–based services.” These services are not considered telehealth services, however, and in 2020, new rules will eliminate geographical restrictions on telehealth services for Medicare Advantage enrollees.
Similarly, commercial insurers are often able to deny claims or offer only partial reimbursement for telehealth services. But there’s good news: More than half of U.S. states have enacted telehealth coverage statutes. These state laws vary but typically require a health insurance plan to cover a service delivered via telehealth in the same manner as if it were delivered in person.
READ MORE: Experts discuss why the growing importance of telehealth creates a need for standards.
Fallacy: All States Require Informed Consent for Telehealth
No federal policy exists on informed consent to telehealth services, and state laws vary on the issue. Most states require a telehealth provider to obtain informed consent — which generally means informing the patient of the treatment methods and limitations of treatment using a telehealth platform, and obtaining the patient’s consent to provide services in that manner.
Providers may also have to explain the potential security risks related to telehealth technologies. Some states have detailed requirements to warn patients that their information may be lost due to technical failure, and to affirm that services meet security and privacy standards.
States vary on the timing and frequency of consent. Some states, such as Utah, require patient consent prior to any patient encounter. Others, such as Vermont, require consent only during the first telehealth patient encounter. In the absence of a uniform policy, providers must carefully review the telemedicine consent law in each state where they plan to provide services.