The recently released Report 7 of the Council on Medical Service: Coverage of and Payment for Telemedicine by the American Medical Association (“AMA”) highlights the complex and evolving legal landscape for doctors and service providers who participate in telemedicine initiatives such as video consultations.
Telemedicine involves the use of electronic communication tools like video, computer applications and even the telephone (in some states) to consult with and treat patients. Medicine has embraced innovations in communications technology to render treatment to patients in remote areas or those who cannot easily get to a provider’s office. To provide guidance, organizations for the specialties of radiology, gastroenterology and child and adolescent psychiatry have published telemedicine practice parameters. Whether these parameters rise to the level of standards or care is still a subject for debate, and the outcome of that debate will have significant risk management implications.
Telemedicine implicates an intricate web of federal and state laws, and a practitioner should be aware of the compliance requirements before incorporating video consultations or other telemedicine platforms or applications into his or her practice. The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulates the transfer and storage of identifiable patient information like video images or other information that is traceable to a specific patient, mandating levels of security of the data and limitations on disclosure of the images and information. Physicians should ensure that the platform and procedures used during the course of remote consultations and/or treatments are HIPAA-complaint and that these procedures to ensure compliance are well documented. Laws of certain states regulate the practice of telemedicine, requiring that doctors must be licensed both in the state in which they physically practice and sometimes the state in which the patient resides. In addition, state laws define “telemedicine” differently and therefore what may be regulated in one state may not be regulated in another. For instance, in New York, telemedicine is defined as “the delivery of clinical health care services by means of real time two-way electronic audio-visual communications. . .” while in California, the definition of telemedicine is not limited to real time communications. Finally, different medical specialties may have guidelines with regard to the practice of telemedicine that may be considered by courts or regulators as evidence of a standard of care in that specialty.
Given the complex nature of the legal landscape regulating the practice of telemedicine and the fact that a doctor’s medical malpractice coverage may not include coverage for the practice of telemedicine, preparation for and understanding of the interaction of the various laws and regulations is imperative. For more information about telemedicine or healthcare compliance, please contact Kenneth N. Rashbaum.