Telemedicine brings exposures along with innovations

Telemedicine is becoming more common all the time, but risk managers might not be keeping up with all the new challenges that come along with the new technology. The use of telemedicine across state lines, in particular, raises some tricky risk management issues.

Many states consider telemedicine to be just a part of the general practice of medicine, explains Laura Podolsky, JD, an attorney with the law firm of Fenton Nelson in Los Angeles. Many consider it to be another tool that requires no special regulation or requirements, Podolsky says. Other states, however, require registration or licensure for physicians and others who practice telemedicine.

Licensing can be a concern with telemedicine because each state requires that any physician practicing in the state be licensed in that state, Podolsky says. But where is a physician "practicing" if the physician is in Washington and the patient is in Idaho, connected by a telemedicine link?

"Generally the practice of medicine is wherever the patient is located, so the doctor in Washington is going to have to be licensed in Idaho. That can be a big stumbling block," Podolsky says. "There is a big risk of violating these licensure laws if you're not careful."

Some states have passed laws to allow a consultation by a doctor from another state without requiring licensure, and those laws can be used to facilitate telemedicine, Podolsky says. (See the story on p. 81 for more on the barriers to telemedicine.)

"The licensing question can be such a barrier to interstate telemedicine that we hope more states would address it legislatively, but so far they're pretty slow to do so," Podolsky says. "States typically aren't going to be concerned with a one-time incident, but if you start to have an ongoing telemedicine relationship with a patient in their state, some boards could take issue with that."

The compliance picture is so murky and the risks of violation so high that Podolsky says risk managers should urge physicians to avoid interstate telemedicine for now.

"Until states move forward in addressing telemedicine specifically, it's too risky to conduct interstate telemedicine on a regular basis," she says. "That shouldn't prevent the occasional interstate consultation because most states have the consultation exception, but you don't want another state's board of medicine to think you're setting up shop there without a license."

Another issue is whether consultations for therapy meet the state's minimum hours' requirements for those seeking licensure. The Board of Behavioral Sciences has not yet addressed this question, Podolsky says.

Reimbursement also is another concern, with some payers trying to avoid payment for telemedicine, Podolsky says. Some states, including California, are passing laws that require payers to cover telemedicine.

Risk managers should review telemedicine programs to ensure they are compliant with state laws, Podolsky says. Be aware, in particular, that the requirements might be different for the various people using telemedicine, she says. For example, there might be requirements for radiologists that don't apply to other practitioners.

"This is a situation in which the law has not kept up with the technology," Podolsky says. "We're hoping to see movement from the legislatures and the medical boards so that this is just a temporary problem."

Source

• Laura Podolsky, JD, Attorney, Fenton Nelson, Los Angeles. Telephone: (310) 444-5280. Email: lpodolsky@fentonnelson.com. F