Telemedicine

Melissa M. Starry
Compliance
Bootcamp
(5/15)
This presentation is similar to any other legal education
materials designed to provide general information on
pertinent legal topics. The statements made as part of the
presentation are provided for educational purposes only.
They do not constitute legal advice nor do they necessarily
reflect the views of Holland & Hart LLP or any of its
attorneys other than the speaker. This presentation is not
intended to create an attorney-client relationship between
you and Holland & Hart LLP. If you have specific
questions as to the application of law to your activities,
you should seek the advice of your legal counsel.
 Telemedicine
• “Telemedicine” = provision of clinical services to patients by
physicians and practitioners from a distance via electronic
communications.
– Simultaneous or “real time” (e.g., teleICU)
– Non-simultaneous, “store-and-forward” (e.g.,
teleradiology)
 Telemedicine Legal Issues

• Licensure
– General requirements
– Idaho requirements
• Credentialing
– General rules
– New COPs regarding credentialing telemedicine providers
 Telemedicine - Generally

Originating Site: Distant Site:

Where the patient is Where the remote
located practitioner is located
Telemedicine
Idaho Telehealth Access Act
 Idaho Telehealth Access Act

• Signed by Governor Otter this legislative session.

• To be codified at Idaho Code 54-5601 et seq.
• Legislative findings:
– Telehealth services enhance access to health care, make
delivery of health care cost efficient, and distribute
limited health care provider resources more efficiently.
– Telehealth services improve health outcomes, decrease
costs, address an unmet need for health care by persons
who have limited access to care due to geographic
barriers.
 Idaho Telehealth Access Act

• What does the Act do?

– Provides a mechanism for the establishment of a provider-patient
relationship via two way audio and visual interaction (instead of
requiring an in-person interaction in order to establish the
relationship).
– HOWEVER provider must still satisfy the community standard of
care as if the provider and patient were having an in-person
interaction. And if you violate the community standard of care, the
Board is going to come after you.
– Regulations from the Board of Medicine and Board of Nursing are
forthcoming…
– Board of Medicine guidelines for telemedicine are on their website…
Licensure
 Licensure
• Who cares?
– Telemedicine provider
• Subject to criminal or administrative sanctions if not properly
licensed, i.e., practicing without license
• No liability insurance
• No reimbursement for services provided
– Originating site
• No liability insurance for provider
• No reimbursement for services provided
• Facility licensing problems
• COP problems
• Maybe subject to negligent credentialing liability if bad
outcome
 Licensure

• State laws generally require that practitioners

be licensed by the state in which the patient is
located.
– States prohibit unauthorized practice of medicine.
– “Practice medicine” = usually interpreted as place
where patient is located.
– State in which patient is located will usually apply
its own law.
• States may vary how they address
telemedicine.
– Full license or limited license required.
 Idaho Licensure
• “Practice medicine” =
– To investigate, diagnose, treat or prescribe for any disease,
ailment, injury, or other condition by any means.
– To apply principles or techniques of medical science in the
prevention of any such conditions.
– To offer, undertake, attempt or hold oneself out as able to
do any of the foregoing.
(IC 54-1803(1))
• Unauthorized practice of medicine = felony
– Up to $10,000 fine
– 5 years in prison
– Adverse action against license
 Idaho Licensure
• “Consultation” exception:
– A person residing and licensed in another state or country
may practice medicine in Idaho if:
• He is consults with a physician licensed in Idaho, and
• He or she does not open an office or appoint a place to
meet patients or receive calls in Idaho.
(IC 54-1804(b))
• Test: direct care v. consultation
– Frequency?
– Other physician involved?
• If telemedicine provider contracts to provide services for
hospital, practitioner must be licensed in Idaho.
 Idaho Licensure
• Board of Medicine Interpretation regarding Reading
of Radiologic or Imaging Studies (3/5/04)
– “It is the interpretation of the Idaho State Board of
Medicine that a physician reading radiologic or
imaging studies done in Idaho on Idaho patients by
an Idaho physician must hold an Idaho license to
practice medicine unless the radiologic or imaging
studies are sent to an out-of-state physician
directly by an Idaho licensed physician to obtain
consultation on a patient.”
(Available on Board of Medicine website)
 Idaho Licensure

• Board of Medicine Interpretation regarding Reading of

Pathology Studies (Undated)
– “It is the interpretation of the Idaho State Board of
Medicine that a physician performing pathology tests on
samples taken in the State of Idaho on Idaho patients by
an Idaho physician must have an Idaho license to
practice medicine if the physician performing pathology
tests is rendering a diagnosis for inclusion in the
patient’s medical chart unless the pathology tests are
sent to an out-of-state physician directly by an Idaho
licensed physician to obtain consultation on a patient.”
(Available on Board of Medicine website)
 Idaho Licensure

• For Idaho Medicaid reimbursement, the

telemedicine physician providing care must
have a current Idaho licensure. (Medicaid Info
Release MA08-01)
 Hospital COPs
• In all cases, healthcare professional must be
legally authorized to practice in the state
where the hospital is located. (Interpretive Guidelines for
42 CFR 482.12 and .22)
• When telemedicine is used and the practitioner
and patient are located in different states, the
practitioner providing the patient care service
must be licensed and/or meet the other
applicable standards that are required by the
state or local laws in both the state where the
practitioner is located and the state where the
patient is located.
(Interpretive Guidelines for 42 CFR 482.11(c))
 Restrictions on Remote Prescribing
• Early internet pharmacies were prescribing based
solely on online questionnaires or similar methods.
• In response, many states or medical boards require an
in-person physical exam before allowing the
practitioner to prescribe or render treatment.
– Medical practices act
– Statement of medical boards
See http://www.fsmb.org/pdf/InternetPrescribing-
law&policylanguage.pdf.
• Check relevant laws concerning in-person contact.
 Idaho Law Regarding Remote
Prescribing
• “A prescription drug order for a legend drug is not valid
unless it is issued for a legitimate medical purpose arising
from a prescriber-patient relationship which includes a
documented patient evaluation adequate to establish
diagnoses and identify underlying conditions and/or
contraindications to the treatment. Treatment, including
issuing a prescription drug order, based solely on an online
questionnaire or consultation outside of an ongoing clinical
relationship does not constitute a legitimate medical purpose.”
• Subject to several exceptions.
• Idaho Telehealth Access Act: allows the provider-patient
relationship to be established via telehealth.
 Licensure
To summarize:
• Telemedicine provider in another state  Idaho
– Ensure outside practitioner has an Idaho license, or
– Make sure—
• Outside practitioner consults with Idaho
practitioner, and
• Outside practitioner does not open shop in Idaho or
contract with hospital to provide services in Idaho.
• Medicaid may not pay for unlicensed provider.
• Telemedicine provider in Idaho  another state
– Check laws of the other state
 Interstate Medical Licensure Act

• Also signed by Governor Otter this session.

• The Interstate Medical Licensure Compact was developed by representatives of state
medical boards from across the country. It does not quite exist yet – 6 states have
passed legislation like this. They are waiting on one or two more, but we are likely at
least a year out on this.
• Idea is to enhance the portability of the medical license and streamline the process for
applying for medical licenses in multiple states by expediting the licensing process for
physicians already licensed in compact states who meet the Idaho requirements.
• Physician must designate one of the member states as the state of principal license for
the purpose of registration.
• The Board of Medicine will participate in the rules and governance of the commission
that manages the Compact. The Compact will share data on practitioners who choose
to use the expedited licensing process, share disciplinary information, and participate
in joint investigations. Disciplinary actions will remain the duty/option of the Board
of Medicine.
Credentialing
 Credentialing and Privileging

• States usually require credentialing of practitioners to provide

services at hospitals or other facilities.
– State statutes or licensing regulations.
– Common law tort duty.
• Medical staff bylaws require credentialing.
• Statutes, regs, or bylaws may require individual credentialing.
• Individual credentialing for telemedicine is problematic.
– Facility may have many providers rendering
telemedicine services, e.g., teleradiology.
– Facility may not be qualified to assess competence of
telemedicine providers through internal credentialing.
 Idaho Hospital Rules

• Idaho hospital statutes and regulations

– Do not expressly cover telemedicine credentialing.
– Contemplate individual credentialing.
• Medical staff members must be qualified for privileges.
• Privileges granted only on basis of individual training,
competence and experience.
• Process must include application, agreement to comply
with bylaws, and delineation of privileges.
• Must include board, administration and active medical
staff.
• Reappointment every two years.
(IDAPA 16.03.14.200 and -.250)
 Medicare Conditions of
Participation
• Allows credentialing by proxy for telemedicine providers,
i.e., hospital may accept credentialing done by distant site if
meet certain standards.
• Must have agreement between the hospital/CAH and either:
– Distant-site hospital that participates in Medicare; or
– Distant-site telemedicine entity, i.e.,
• provides telemedicine services
• not a Medicare-participating hospital
• provides services in manner that allows hospital or
CAH to meet all COPs.
(42 CFR 482.12 and 485.616; 76 FR 25550 (5/5/11); CMS Transmittal
78 (12/22/11)
 Credentialing: Hospital COPs

• COPs only allow credentialing by proxy for telemedicine

privileges.
• If practitioner provides non-telemedicine services, hospital
must credential practitioner in traditional manner.
• For telemedicine services, hospital/CAH’s governing board
has the option to:
– allow medical staff to rely on credentialing done
by distant hospital or entity under new COPs, or
– require med staff to credential each telemedicine
provider.
 Credentialing: Emergency privileges

• Many state laws, regulations and/or bylaws allow facilities to

grant temporary or emergency privileges.
– Granted in limited circumstances, e.g.,
• While normal credentialing process occurs.
• Unique patient care need.
– Subject to limited, preliminary review.
– Privileges limited to no more than 60 days.
• Unclear how this would coordinate with telemedicine COPs.
 Credentialing: Medical Staff Bylaws

• May need to update your medical staff bylaws to address

telemedicine.
– Qualifications for medical staff members.
• e.g., geographic proximity, admissions, etc.
– Categories of medical staff members.
• e.g., add telemedicine staff category
– Privileges.
• e.g., grant telemedicine privileges without med staff
– Credentialing process.
• e.g., allow credentialing by proxy based on new COPs.
• CMS survey process requires review of medical staff bylaws to
verify compliance.
Questions?

Melissa M. Starry
mmstarry@hollandhart.com

Kim C. Stanger
kcstanger@hollandhart.com