Boling telemedicine and law

TELEMEDICINE AND LAW

GEORGIA PARTNERSHIP FOR TELEHEALTH

2015 CONFERENCE

INTERSTATE LICENSURE

Out-of-state telemedicine licenses Interstate Medical Licensure Compact Other licensure exceptions

OUT-OF-STATE TELEMEDICINE LICENSES

Example 1: “The board shall issue a telemedicine license to allow thepractice of medicine across state lines to an applicant who holds a fulland unrestricted license to practice medicine in another state orterritory of the United States.” LA. REV. STAT. ANN. § 1276.1(A)

Example 2 (requiring reciprocity): “[T]he commission shall only issuea special purpose license to practice medicine or osteopathy acrossstate lines to an applicant whose principal practice location and licenseto practice is located in a state or territory of the United States whoselaws permit or allow for the issuance of a special purpose license topractice medicine or osteopathy across state lines or similar license to aphysician whose principal practice location and license is located in thisstate.” ALA CODE § 34-24-507

INTERSTATE MEDICAL LICENSURE COMPACT

• Proposed in late 2014 by the Federation of State Medical

Boards

• Creates new, expedited pathway to licensure outside of a

physician’s primary state

• To be administered by interstate commission

• Introduced as legislation in 15 states, already signed by

Wyoming and South Dakota

• Would greatly facilitate licensure process for telemedicine

providers seeking to extend into multiple states

Medicare:

• Part B reimburses at rates generally equal to in-person care

• “Interactive telecommunications system” with “real-time audio and video”

• Patient must be in Health Professional Shortage Area

REIMBURSEMENT

MEDICARE REIMBURSABLE SERVICES

Services:

Emergency department; inpatient/

outpatient; subsequent hospital services

(max 1 tele-consultation every 3 days);

psychotherapy; pharmacologic mgmt;

transitional care mgmt; more

Patient location (in HPSA):

Hospitals, physicians’ offices, FQHCs,

Rural Health Clinics, hospital-based

dialysis centers, skilled nursing facilities,

community mental health centers

MEDICAID/PRIVATE INSURANCE PARITY

Medicaid AND Private Insurance

Medicaid OR Private Insurance

Proposed legislation


Source: mmis.georgia.gov





• States’ laws will vary as to authority of physician extenders (NPs, PAs,

etc.) – be mindful!

SCOPE OF PRACTICE

• Georgia’s medical board rule offers good example of inclusive approach

to telemedicine scope of practice:

Electronic consultations authorized so long as a physician,

physician assistant or nurse practitioner has:

1. Has personally examined the patient; or

2. Is performing the service at the request of a physician, physician

assistant or nurse practitioner who has physically seen the patient; or

3. The technology is equal or superior to an personal examination,

regardless of whether the patient has been seen

Ga. Comp. R. & Regs. 360-3-.07

• How can a telemedicine arrangement be structured without implicating

illegal referrals?

• U.S. Office of Inspector General Advisory Opinion No. 11-12

• Issued August 29, 2011

• Neuroscience group sought to become exclusive tele-stroke practice

for hospital system, consulting with hospital patients via telemedicine

and, if necessary, taking neuro emergency transfers

• OIG approved arrangement! Why?

• While hospital could not use other tele-stroke providers, there

was no requirement of referrals to group – could still transfer

stroke patients anywhere

• Primary goal was to save money, reduce transfers, help patients

FRAUD AND ABUSE

FRAUD AND ABUSE

Safe harbor protection: Personal Services Arrangements

• Note: not always necessary to meet safe harbor (e.g. Advisory

Opinion 11-12; no safe harbor protection but still compliant)

• Personal Services Arrangements are always compliant if:

• The agreement is in writing and signed by both parties,

for a term of > 1 year

• The agreement sets forth an exact schedule of services

• The aggregate compensation is set in advance

• Compensation does not reflect value or volume of

referrals

• Other potentially relevant safe harbors:

• Investment interests

• Referrals for specialty services

• Federally Qualified Health Centers

FRAUD AND ABUSE

Healthcare

Boling telemedicine and law