Telemedicine: Challenges and Opportunities

Telemedicine: Challenges

and OpportunitiesDavid Harlow JD MPHTHE HARLOW GROUP

LLCblog • healthblawg.com

twitter • @healthblawg Health Law SymposiumBostonMay 20, 2016

Dynamic Tension

One foot in the past, one foot in the future.

Cost & Quality

Telemedicine Modalities

Synchronous Asynchronous

Remote Monitoring Mobile Health

Live Video (Synchronous)Image credit: IntelFreePress via Flickr CC

Market Driven

Health Insurance Exchange - Network Adequacy• Colorado to recognize telemedicine

providers for network adequacy requirements for some specialties (2017)• Seems to be isolated instance thus far,

even though NAIC has built telemedicine providers into its model approach to assessing network adequacy• Urban Institute report

Employee Benefits > Medicare > Medicaid

Employee Health Benefit

Medicare

Medicaid2016 expansion

50-State Coverage & Reimbursement

Limited by State Medical Boards

Interstate MedicalLicensure Compactlicenseportability.org

Can practice limits imposed by a medical board be an antitrust violation?

North Carolina – Teeth Whitening

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The Supremes said: “a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates” may invoke the state action defense only when two requirements are satisfied: first, the challenged restraint must be clearly articulated and affirmatively expressed as state policy; and second, the policy must be actively supervised by a state official (or state agency) that is not a participant in the market that is being regulated. N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101, 1114 (2015).

FTC Guidance (October 2015)

Texas – Board Bars Prescription Without F2F Encounter & Teladoc Sues• This fight has dragged on for five years already …• Initial bar: By letter … Eventually: By regulation • Teladoc won in US District Court, Texas Medical

Board appealed to 5th Circuit Court of Appeals

Bringing up the rear …

• Indiana’s F2F rule for Rx writing has been eliminated (except for controlled substances) effective July 1, 2016. • Alaska, Arkansas & Texas

still require F2F visit to establish physician-patient relationship

Massachusetts• Prescribing physician must have physician-

patient relationship• Rule arose in context of online

pharmacies• State licensure required (not part of

compact)

Expanding into chronic and behavioral health

Asynchronous (Store & Forward)

Services that are not “health care services” but rather “informational” services

Remote Monitoring

Mobile Health (Apps)

Link to recent reports & discussion

Data privacy and security issues

Progress . . .

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Thank You David Harlow JD MPHTHE HARLOW GROUP

LLC