AcuteCare Telemedicine Blog


Clearing the Hurdles for Advancing Multistate Telemedicine

For the most part, the laws that govern the practice of medicine in the United States are state laws. One of the few things those laws agree on is that jurisdiction of those laws is based on the patient’s location, not the doctor’s. With the fast paced expansion of telemedicine technology and new mobile health opportunities bursting on the medical delivery scene, some well-established procedural hurdles are slowing the advancement of multistate practice of telemedicine. It is not that these procedures are necessarily bad it’s just that their creation and implementation are from a time when few could even imagine or foresee the advancements in the telecommunication technology of today.

The benefits of telemedicine to the delivery of healthcare, is becoming obvious to even the most resistant of detractors. “It’s relatively easy to do [telemedicine] if you’re going to stay within your particular state,” said Nathaniel Lacktman, a senior counsel at Foley and Lardner, “But if you really want to expand your reach, and be revolutionary or just make a whole lot of money, you’re going to need to go cross-border. Because of that you will be subject to the laws of that particular state. Across the country, where the patient is located, those are the laws that govern.” The six most common regulatory and procedural hurdles to expanding multistate telemedicine include:

Licensing

The American Telemedicine Association estimates that getting doctors licensed in additional states for telemedicine costs physicians $300 million per year. While some exceptions to state licensure laws have recently been put into place for telemedicine, most are not broad or consistent. For example, every state has a remote exception for post-surgical consultations. But some of those require the consultation to be free, some can only be hospital to hospital, and different states have different definitions of a consultation.

Scope of Practice

Every state board has the duty to enforce standard of care in their specific community and one of the most vexing standard of care provisions for telemedicine is the notion of doctor-patient relationships. Many states allow doctors and patients in an established relationship to meet virtually, but require the relationship to be established in an initial face-to-face meeting. To gain the most in quality and cost benefit from the practice of telemedicine, few face to face encounters between a patient and a doctor or specialist will occur prior to telemedicine treatment or consultation.

Credentialing

To practice hospital-to-hospital telemedicine, many hospital bylaws and state laws require physicians to be credentialed as if they were employees in the remote hospital, sometimes including maintaining their own health insurance, participating in staff education, and other requirements that don’t quite seem to apply.

The Centers for Medicare and Medicaid services have introduced a proxy rule for credentialing that could alleviate some of that pressure but in general practice, the myriad of credentialing requirements is overwhelming most attempts to efficiently overcome this barrier. Perhaps we can all agree on some common standardization of credentials to avoid unwanted implementation of federalized, “one size fits all” intervention.

Remote Prescribing

Remote prescribing is also covered under scope of practice, but with additional complications. Individual state pharmacy board’s standard of care, often have their own rules and the prescription of controlled substances can be regulated differently in different states. “There’s a whole set of rules on remote prescribing, what you’re allowed to do, what you’re not allowed to do,” Lacktman said. “Rule of thumb: prescribing is more restrictive than consults.”

Contracting

Contractual arrangements for physicians and other healthcare provider professionals differ greatly from one state to another. Attempting to practice across all states collectively is a minefield of differing contractual laws. For a business employing multiple doctors, the arrangement for paying doctors has to conform to all the states’ fee-splitting laws, practice of medicine laws, and anti-kickback statutes, which essentially prohibit doctors from buying and selling referrals.

As is often the case, the most admirable and beneficial accomplishments in any endeavor are rarely easy, but overhauling the well-entrenched, well-meaning bureaucratic regulations of the past is extremely daunting at the very least. It will require dedication and vision of all who seek to improve the delivery of healthcare to all Americans, no matter where they reside.


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