Hancock Estabrook attorneys discuss telemedicine issues at symposium

DeWITT — Four lawyers in the health-care group of Hancock Estabrook, LLP discussed legal issues of telehealth and telemedicine during the Syracuse law firm’s 2015 Health Law Symposium held March 5 at the DoubleTree by Hilton Hotel in DeWitt, near Carrier Circle.

 

The panel discussion covered topics that included reimbursement, licensure, medical-staff credentialing, liability, and security issues.

 

The attorneys participating included Mary Miner, Meghan Gaffey, Catherine Diviney, and Laurel Baum.

 

Reimbursement

“We have some similarities and some inconsistencies” on definitions of telehealth in terms of reimbursement, depending on if you speak to general practitioners or to Medicare representatives, Miner said to open her remarks.

 

For reimbursement, Medicare defines telehealth as a “condition of payment,” meaning telehealth must use an interactive audio and video-telecommunications system that permits real-time communication between the provider and the patient.

 

“Interestingly, CMS (Centers for Medicare & Medicaid Services) also has a definition of telemedicine under Medicaid, which is the same as this first definition … but they call it telemedicine,” said Miner.

 

New York has legislation pending, she added, but currently has a separate definition for telehealth, which includes telemedicine, store and forward technologies (such as the use of digital images and teleradiology services), and remote patient monitoring.

 

“The main limitation to reimbursement for Medicare has been that they only reimburse for services that are provided to patients in a rural area,” she noted.

 

But that doesn’t mean that Medicare doesn’t reimburse for other services provided through communication technologies. 

 

“They just don’t call it telehealth or telemedicine,” said Miner.

 

For example, Medicare reimburses for teleradiology but it’s not telehealth “because the patient isn’t present at that time,” said Miner.

 

For 2015, Medicare has expanded the services that it will reimburse under telehealth, which include annual wellness visits, psychoanalysis, psychotherapy, and prolonged evaluation and management services, she noted.

 

Miner also talked about chronic-care management, which doesn’t fall under the telehealth definition because “it’s not necessarily provided by a communication technology in real time.” 

 

She called it an “important development for Medicare” because these services, which are provided to beneficiaries with chronic conditions, can involve care management, care planning, communications between providers, and medication management.

 

“Previously, these services were not reimbursed separately,” she said.

 

Miner thinks it signals that Medicare is recognizing that it will need to start reimbursing for the services to “get away from these costly, face-to-face interactions” and to be “more proactive” in treating patients before they have “really significant health problems.”

 

Physicians could provide the treatment through “other types of communication technologies,” such as phones or secure messaging, she added.

 

The New York State Legislature in 2014 approved the Telehealth Parity Law, Miner noted. 

 

“What that means is that now commercial payers and Medicaid are going to be required to reimburse for certain telehealth services,” said Miner. 

 

But she also noted the state isn’t currently enforcing the law because Gov. Cuomo’s signature on the legislation was contingent on making some changes to the bill that the legislature approved. 

 

The law was scheduled to take effect Jan.1, but payers “weren’t going to have enough time to adjust,” Miner said.  

 

Other issues centered around what the law would require insurers to reimburse; and reimbursing telemedicine when insurers wouldn’t reimburse for the same services that were provided in a face-to-face visit, she added.

 

The Senate and Assembly are currently considering some chapter amendments to the legislation, Miner said.

 

Federal/state differences

Miner went on to outline some differences between how New York and the federal government are treating telemedicine. 

 

The first is a difference in definition, she said. 

 

Telemedicine is defined as the two-way interaction, but the Telehealth Parity Law is going to require commercial insurers to reimburse for these other technologies, including the “store and forward” technology and then for something called remote patient monitoring. 

 

“It’s sort of similar to what Medicare is doing with the chronic-care management. Remote patient monitoring is going to be services provided to a patient in their home and it’s for patients that have chronic-care needs that need frequent monitoring or have technology-dependent care, such as a ventilator, continuous oxygen, or something of that nature,” said Miner.

 

New York also won’t limit the originating site where the patient is located to rural areas, she added. 

 

“So, that’s another important development that providers will not be limited in that same way that they are under Medicare,” Miner said.

 

In addition, the way New York is defining qualified providers who can bill for these services, is “at this point, much more expansive than Medicare.” 

 

“It’s going to include social workers, speech pathologists, genetic counselors.”  

 

She noted that part is “subject to change.”

 

Licensing

In her remarks, Gaffey spoke about professional licensing requirements, which “are generally set at the state level.” 

 

The location of the telemedicine provider will determine the state in which the provider will need a license, she said.

 

“For instance, if you have a patient here in New York … and a doctor who’s actually physically located in Texas providing telemedicine services to the patient, in which state is the care actually being provided?,” Gaffey asked, in illustrating her example.

 

In 2000, the state’s Office of Professional Medical Conduct indicated that “as far as they’re concerned, the state in which the patient is located and receiving the services is actually the state of care,” said Gaffey. 

 

Providers who wish to provide telemedicine services to patients in New York they need a license to perform such a service in New York, she added.

 

Gaffey also discussed credentialing, noting that Medicare, the Joint Commission, and New York … have all [approved] new standards in the last few years that allow providers to rely on the credentialing practices of the telemedicine provider’s location.

 

“The good news as far as credentialing is that the standards that Medicare and The Joint Commission in New York have passed … are almost identical, so as long as you can make sure  you’re following one set of standards, you’re probably following them all,” said Gaffey.

 

The Joint Commission is an Oakbrook Terrace, Illinois–based independent, nonprofit organization that accredits and certifies more than 20,500 health-care organizations nationwide, according to its website.

 

Liability

In addressing the liability issue for telemedicine, Diviney said that a successful personal-injury claim involves four elements, including duty, breach, causation, and damages. 

 

“You had a duty, you breached the duty. That caused the injury, and … because of the injury, I had damages,” said Diviney

 

Diviney then used the remainder of her remarks discussing duty and breach “because the causation and damages … flow from the first two issues,” she added. 

 

Security

Finally, Baum discussed issues involving privacy and security, noting that telemedicine will often involve communication between a provider and a patient over a Skype transmission.

 

Skype is a messaging program that requires a web camera and an Internet connection to speak with someone who has the same configurations in a different location.

 

“Somebody in your organization, and it’s definitely going to involve your security [people], needs to be involved to make sure that you have some risk analysis …  of the equipment you’re using and your service provider,” said Baum.

 

She also noted the ongoing debate about whether Skype should be considered a business associate under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which would require an agreement outlining the Skype-provider relationship as business associates.