Common Legal Barriers

Telehealth technologies, with their ability to eliminate physical distance as a barrier to care, have in the process raised a number of legal and ethical issues normally not encountered and addressed in traditional systems of health care regulation.

Issues in particular that have emerged that warrant serious attention and policy direction from individual states and the federal government:

  • Credentialing and Privileging. This refers to the process used by health care organizations to validate the credentials of practitioners to practice medicine in those organizations.  Telehealth technologies have created challenges to these organizations and regulatory agencies, as hospitals attempt to enhance their staff with needed specialists who provide services via telehealth. On May 5, 2011, the Centers for Medicare and Medicaid Services (CMS) released its final rule that makes changes to CMS’s Conditions of Participation (CoPs) as they pertain to the credentialing and privileging of telehealth providers. The final rule permits both hospitals and critical access hospitals (CAHs) to utilize a new process to credential and privilege telehealth providers. However, in some cases this rule may conflict with established state policies, so it’s important to check with your state Medicaid office on its telehealth credentialing policies.
  • Online Prescribing. This refers to a medical provider’s ability to prescribe drugs to a patient who has been diagnosed and treated via telehealth.  While the vast majority of these encounters are within the bounds of acceptable telehealth practice and is beneficial to the patient, a number of concerns are emerging over the quality and practices of less scrupulous for-profit provider entities entering the marketplace who may be treating patients and prescribing inappropriately.  Concerns have arisen over a variety of issues including whether an appropriate patient-provider relationship has been established, lack of an adequate physical examination of the patient, accuracy of the patient’s history given the self-reporting of the patient over a telehealth connection, and not meeting state medical board licensing requirements.  Online prescribing policies vary across the states and in recent years has been the subject of state legislation. 
  • Malpractice Liability. Very little information exists on the extent of malpractice liability and telehealth. There have been a few telehealth-related cases but the results have been sealed. However, as telehealth and related mhealth practices become more widespread and available, questions of medical liability will undoubtedly increase. Medical malpractice carriers will need to identify and address these issues in the future, as this is for the most part unchartered waters.
  • Licensing of Physicians and Other Health Care Providers The introduction of technology-enabled health care over secure, high-speed broadband connections have made it possible for consultations to occur over large distances. While this can contribute significantly to improving access to care, professionally licensed providers in most cases are limited to practicing in the state(s) where they are licensed.  This responsibility falls under the purview of the licensing boards of individual states.  These policies governing telehealth and physician licensure vary widely across the country.  Some states have adopted the Interstate Medical Licensure Compact, which provides for an expedited licensure process (although it has not yet been implemented as of January 2017). Other states allow cross-border delivery of health care via telehealth, while while still others ban it entirely.
  • Informed Consent. While Medicare does not require that an informed consent be obtained from a patient prior to a telehealth-delivered service taking place, a majority of states do have such a policy for their Medicaid services.  This may be due to concerns over health information security or ensuring whether the patient fully understands what is to take place.  In the former case, HIPAA already exists to protect the patient from health information breaches.  Typically, prior informed consent is reserved for invasive procedures and experimental studies, and not required when a patient is offered a choice in how they wish to receive services.  Requiring a prior written or verbal informed consent for any telehealth consultation and treatment misrepresents telehealth as a different form of service, rather than as a useful tool that enhances diagnostic and treatment services

 

Further information on these subjects can be obtained from the Center for Telehealth and eHealth Law ( CTeL).