Telemedicine Licensing and Credentialing—Opportunities for Lawyers

Note: The advance of a new technology such as telemedicine should always be interesting to job-seeking attorneys and law students because it represents a great leap forward beyond existing law. Anytime you encounter a “law-technology gap” such as this, think opportunity.

Telemedicine is the use of electronic information and telecommunications technologies to support long-distance clinical health care, patient and professional health-related education, public health and health administration.

Telemedicine technologies typically include: videoconferencing, the Internet, store-and-forward imaging, streaming media, terrestrial and wireless communications, surgical devices that can be manipulated outside of operating rooms, and even robot avatars that make hospital rounds. While new applications are increasingly found for using these technologies, significant barriers remain to making them an integral part of healthcare practice.

The accelerating development of new information technologies has rendered geographic boundaries vis-à-vis healthcare something of an anachronism. The potential of telemedicine exponentially increases access to health information and expands opportunities for practice beyond state and even national borders.

Despite these dramatic advances, telemedicine technology remains constrained by a state-based licensure system and state laws that treat telemedicine providers differently from face-to-face encounters between physicians, for example, and their patients. Current state medical licensing regimes are creatures of the early 20th century, inadequate to the march of 21st century medical delivery technology.

Other key issues include: limited licensing of out-of-state practitioners; insurance coverage parity; Medicaid coverage; what constitutes telehealth delivery, and much more.

States have begun to alter  their medical licensure and other systems to accommodate telemedicine advances. According to the American Telemedicine Association, 35 states have enacted laws addressing telemedicine. However, many of these laws are half-way measures that do not address all of the issues associated with the new technology. However, providers still confront a patchwork of conflicting requirements for insurance claims and practice standards that prevent them from taking full advantage of telemedicine.

Courts have also gotten involved in the disjointed advance of telemedicine acceptance. In 2011, the Texas Medical Board issued rules that required telemedicine providers to have either a pre-existing relationship or the presence of a face-to-face presenter. Telehealth companies sued and won several court victories, prompting the Medical Board to promote state legislation that would liberalize the restrictive rules and allow such things as live interactive encounters with patients, asynchronous communications without the presence of telehealth presenters, limited prescribing based on telemedicine, and standard-of-care parity. The bill will require a bevy of regulations clarifying its provisions to be issued. At this writing, the bill (SB 1107) is on the governor’s desk and he is expected to sign it.

Telemedicine laws have come a long way in just a few years. Currently, 33 states and the District of Columbia have enacted “telemedicine parity laws” that place telehealth practice on a par with face-to-face encounters between healthcare professionals and patients. An additional seven state legislatures are in the process of considering such legislation.

The legal issues raised by telemedicine are legion, complex, and vary from state-to-state, s surefire brew for attorneys seeking a vibrant practice.