Navigating the Legal Boundaries of Telehealth

Today, our episode is based on a post from our Law Meets Science blog, and we're taking a deep dive into telehealth, a topic that might seem new but has actually been evolving for centuries.

Read the article.

About the author:
Melissa Ratliff, RN, BSN, Legal Nurse Consultant.

Transcript

Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

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Today, our episode is based on a post from our Law Meets Science blog, and we're taking a deep dive into telehealth, a topic that might seem new but has actually been evolving for centuries. Telemedicine didn't just spring up during the COVID-19 pandemic; its roots trace back much further, depending on how you define it. In fact, some literature suggests that during the time of the bubonic plague, information was transmitted across Europe using smoke signals. Fast forward to the Civil War, and we see the electronic telegraph being used to order medical supplies and report casualties.

The modern concept of telemedicine as we know it today started with NASA’s manned space flight programs over 50 years ago, designed to assist astronauts on long-duration missions. By the 1990s, telehealth was already being used to provide remote healthcare to workers on ships.

In our post-pandemic world, telehealth has become a comprehensive term for delivering clinical and non-clinical health services through both text and video transmissions. It has revolutionized the healthcare industry, offering patients unprecedented access to medical care from the comfort of their homes. But as with any digital transformation, it has brought along a host of legal challenges, which vary from state to state. Let's explore some of these complexities:
First, licensure requirements. Physicians practicing telemedicine across state lines must comply with each state's licensing regulations. While some states have multi-state licensure compacts to streamline the process, others require out-of-state providers to complete registration requirements, such as paying an annual fee and maintaining professional liability insurance.

Next, standards of care. Should the standard of care in telehealth match that of in-person visits? This is a gray area, especially considering diagnostic limitations like the inability to conduct a comprehensive physical examination during a telehealth visit, which can complicate diagnostic accuracy.

Privacy and confidentiality are also major concerns. Telemedicine involves the transmission of sensitive patient information over digital platforms, raising significant data security issues. All telehealth communications must comply with the Health Insurance Portability and Accountability Act, or HIPAA. This includes secure transmission of health information and proper use of telehealth platforms.
Informed consent is another critical aspect. Patients must properly understand and agree to telehealth services, with specific guidelines in many states on how consent should be obtained. This includes verifying the patient’s identity and location, disclosing potential limitations and risks, and documenting consent in the patient’s medical record.

Online prescribing of controlled substances is handled differently in each state. Some states don't allow it at all, while others require an in-person evaluation within a specific timeframe. The least restrictive states only require the establishment of a patient-physician relationship, which can even be done via telehealth without an in-person meeting.

Reimbursement and billing for telehealth services are constantly evolving. While most insurance providers offer coverage, reimbursement varies based on the service, state, and payer. Providers must navigate complicated policies to ensure billing practices comply with laws like the Anti-Kickback Statute and the False Claims Act to avoid accusations of abuse or fraud.

Finally, technology and platform use require careful review to ensure patient data protection and legal compliance. The technology must meet standards for functionality and security.

Telehealth offers incredible convenience and accessibility, representing a significant advancement in healthcare delivery. However, navigating the complex legal landscape is essential for healthcare providers. Understanding jurisdictional issues, privacy concerns under HIPAA, and the standards of care in telemedicine versus in-person visits is crucial.

Stay tuned as we continue to explore the fascinating world of telehealth and its impact on the future of healthcare.

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