Health law is a booming practice area, rendered more interesting and opportunistic by the turmoil surrounding the Affordable Care Act and the Trump administration’s efforts to undermine it, the digitization of and online access to medical records, accompanying privacy concerns, and the surge of technology “solutions.” Within the health law realm, one of the most interesting and rapidly-changing areas of opportunity is telemedicine. The law with respect to telehealth is engaged in a constant struggle to keep up with technological advances. Whenever this happens, opportunity is knocking loudly for attorneys.
Setting the Scene: 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 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.
Telemedicine knocks down geographic boundaries. It also cuts the costs of healthcare and expands medical and legal practice opportunities beyond state lines.
The Feds Intervene: Until very recently, the spread of telemedicine and the maximization of telehealth to deliver healthcare services more efficiently and cheaply was constrained by state-based licensure systems and state laws that treated telemedicine differently from face-to-face encounters between healthcare providers and patients. That is now changing, thanks to federal government exasperation with the states’ snail’s pace progress toward expanding telehealth services and the absence of model uniform legislation for states to adopt.
The Bipartisan Budget Act of 2018 (BBA) https://congress.gov/115/bills/hr1892/BILLS-115hr1892enr.pdf enacted major changes to Medicare’s telehealth policy, representing the most significant legislative advances for Medicare’s telehealth policy in years. The new policies begin the process of overriding state restrictions on the provision of telemedicine services.
- Allows Medicare Advantage Plans to offer additional, clinically appropriate telehealth benefits in their annual bid amount beyond the services that receive payment under traditional Medicare.
- Enables Accountable Care Organizations (ACOs) to offer teledermatology and teleophthalmology.
- Expands approved Medicare telehealth services to include certain stroke and end-stage renal disease consultations without regard to their geographic location.
Other proposed legislation includes:
Creating Opportunities Now for Necessary and Effective Care Technologies for Health Act(CONNECT Act) https://congress.gov/bill/114th-congress/senate-bill/2484/text. This bill would expand access to telehealth by making a series of exceptions to current Medicare restrictions, including allowing for reimbursement for remote patient monitoring services when they are in combination with chronic or transitional care management services.
Improving Access to Remote Behavioral Health Treatment https://docs.house.gov/meetings/IF/IF14/20180228/106915/BILLS-115pih-HR-U16.pdf would amend the Controlled Substances Act https://deadiversion.usdoj.gov/21cfr/21usc/ that bans the delivery, distribution and dispensing of certain drugs online without a valid prescription by requiring the Drug Enforcement Administration https://dea.gov to register community mental health or addiction treatment centers as eligible patient sites for initial controlled substances prescriptions.
Special Registration for Telemedicine Clarification Act of 2018 https://govtrack.us/congress/bills/115/hr5483/text would instruct the Attorney General to take necessary steps to allow for the prescription of medication-assisted treatment and other controlled substances via telemedicine. In 2008, Congress enacted the Ryan Haight Online Pharmacy Consumer Protection Act (P.L. 110-425). https://gpo.gov/fdsys/pkg/BILLS-110hr6353enr/pdf/BILLS-110hr6353enr.pdf, which made it illegal for a practitioner to dispense controlled substances through the internet without at least one in-person patient evaluation in order to prevent fraud and abuse. The law allows the Attorney General to create a special registration through which healthcare providers may prescribe controlled substances via telemedicine in emergency situations, but this waiver was never implemented.
Opioid Crisis Response Act of 2018. https://help.senate.gov/imo/media/doc/The%20Opioid%20Crisis%20Response%20Act%20of%202018%20summary.pdf This bill would clarify DEA’s ability to develop a regulation to allow qualified providers to prescribe controlled substances in limited circumstances via telemedicine and allow community mental health and addiction treatment centers to register with DEA to treat patients through the use of telemedicine.
The House Ways and Means Committee https://waysandmeans.house.gov/ is drafting legislation that would expand the coverage of telehealth services. The bill has yet to be completed.
Other Federal Initiatives
The Center for Medicare and Medicaid Services’ (CMS) https://cms.gov 2018 Medicare Physician Fee Schedule includes the expansion of telehealth services. CMS also requested information on ways they can expand telehealth services without a law change, particularly around remote patient monitoring.
The U.S. Department of Veterans Affairs is preparing to overhaul its approach to telehealth licensure by overriding state restrictions either through rulemaking or through legislation which will help expand telehealth initiatives.
With out-of-control healthcare costs a central concern, Congress is coming up with additional telehealth solutions. These represent an invocation of the Constitution’s Supremacy Clause for the purpose of cutting through and casting aside the state-by-state jumble of inconsistent laws and regulations that currently constrain telehealth services.
A barrage of federal legislation overlaying existing state laws and regulations will create a “perfect storm” environment for attorneys to step in and assist healthcare providers navigate these complex and sometimes contradictory pronouncements.
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