Efforts to Remove Legal Barriers to Telemedicine

The only thing slower than widespread adoption of telemedicine has been the statutory changes necessary to make the ground more fertile for it. But in just the past six or seven weeks there has been a definite change in attitude among lawmakers and regulators.

The only thing slower than widespread adoption of telemedicine has been the statutory changes necessary to make the ground more fertile for it. But in just the past six or seven weeks there has been a definite change in attitude among lawmakers and regulators.

Unraveling the problems requires some new thinking.  First, you must admit that telemedicine holds a great deal of promise in providing access to healthcare and in controlling costs, especially when faced with a shrinking physician population and a rapid increase in the number of senior citizens – the age group consuming 40-50% of all healthcare resources. Some 10,000 people retire every day in the United States. 

Barrier #1: Establishing the physician-doctor relationship requires an in-person medical visit.

Unless the doctor-patient relationship exists, it is unprofessional conduct for a physician to prescribe prescription medication. Not only is this requirement in many states’ medical practice acts, but it’s also taught to be the standard of care in many medical schools.

Add to that the attitude that “Doctors must be able to touch the patient,” you have the argument against technology and remote assessment during an initial visit.  Many doctors believe that in order (for them) to gather the necessary information about a patient’s medical condition they must meet in-person. Although that my be true in some cases, doctors usually conduct a very general exam through conversation, not palpation.  

An initial examination done telemedically is not radically different. The patient fills out medical history forms; a nurse or lower level practitioner takes the patient’s vital signs and logs them along with the patient’s complaint. The physician scans the file and enters the room, in this case via videoconference. 

Two weeks ago, the Robert J. Waters Center for Telemedicine and eHealth Law (CTeL) published its proposed “Electronic Examination for Telemedicine Prescribing.” These templates “would ensure that patient safety would be upheld and would provide clarity for telemedicine providers who wrestle with prescribing in states where the use of an electronic ‘face-to-face’ examination is not specifically identified.” The proposed statutory language would waive the face-to-face exam when “it would not normally be part of a typical face-to-face encounter with the patient for the specific services being provided.”

Already, a dozen states allow a bona fide physician-patient relationship to be established through an appropriate electronic exam. The rest should.

Barrier #2: Physicians must hold a valid medical license for each state in which they see patients.

To some extent this is a holdover from when state medical boards tested license applicants to make sure they had an adequate fund of knowledge to treat patients. Now the National Board of Medical Examiners administers the USMLE (United State Medical Licensing Examination), and state medical boards just ask for evidence showing that an applicant has passed all three elements of the test.  Obviously, they also have to prove they have a medical degree and have done a residency.  But if they’ve done that once for a license in their home state, why force them to do it again for telemedicine?  Because each state has different requirements, and they’ve balked at standardizing them.

Last month, the Federation of State Medical Boards (FSMB) held a meeting for 80 representatives of state medical boards to explore the idea of a streamlined licensing process so as to better accomodate the use of telemedicine.  Those attending the meeting recommended that the FSMB’s House of Delegates look into a uniform, expedited interstate medical licensure compact to support license portability.

Some believe the model for license portability should be a compact somewhat similar to the one for nurses.  Twenty-four states are members of the Nursing License Compact (NLC).  A nurse with a permanent residency in one NLC state is eligible to work in other “compact states” without the need for licenses from the other states.

Such a compact for physicians would allow specialists in Reno, for example, to see patients who live in eastern California telemedically without the need for a California medical license. Many rural areas are just across a state border from a major city where healthcare is available, but rendered inconvenient by licensure.

Barrier #3: The point of medical care depends on the location of the patient.

This barrier is closely related to Barrier #2, but approaches the issue from a different direction.  A comprehensive telemedicine bill introduced in Congress on the last day of the the last Congressional session by California Congressman Mike Thompson would change the point of care to where the doctor is.  The significance of this proposal is that a physician could see patients anywhere in or from the state where he holds a valid license.  Thompson’s measure does not create a national telemedicine license because the last thing we need is another level of bureacracy between the doctor and his patient.

The bill must be re-introduced in the new session of Congress, something that Thompson pledges to do.

Barrier #4: Medicare reimbursement limitations on telemedicine.

These vague limitations were included in the legislation Congress approved in 2001, forcing Medicare to reimburse physicians for telemedicine visits.  To get CMS administrators on board, supporters of the bill had to agree to restrictions aimed at discouraging the adoption of telemedicine within urban areas.  

Even if the patients are in rural areas, a medical practice needs a lawyer to figure out if it can be reimbursed.  As I’ve mentioned before, CMS believed that left unrestrained doctors would overuse telemedicine and run up giant reimbursements.  Based on this fear, government accountants predicted that telemedicine visits would cost $30 million each year for the first five years the law was in effect.

Never happened!  In the 11 years since reimbursements were approved, the total amount for telemedicine was just over $20 million.

Without a change in attitude, we’ll fail to deliver adequate healthcare in the 21st Century to the right patient at the right place at the right time.  It can’t be done successfully with the 20th Century model.