Healthcare // Policy & Regulation
Commentary
11/25/2013
08:06 AM
Jeremy Johnson
Jeremy Johnson
Commentary
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Online Healthcare: States Must Be More Open-Minded

Telemedicine and online consultations from home hold great promise, if the law can get out of the way.

Consequences of getting it wrong: fines, penalties and jail time
The online care delivery model implicates many legal issues, including those above and other issues such as scope of practice, informed consent, mandated reporting, and expedited partner therapy. Clearly, there are many ways an online care model can run afoul of state laws and the consequences of doing so can be significant.

Penalties range from civil fines for each violation, up to criminal felony prosecution. Violating prohibitions against online prescribing carries the biggest exposure to the most significant penalties. Several years ago, the California Board of Medicine cited six physicians not licensed in California for illegally prescribing drugs over the internet and imposed fines in excess of $48 million.

Barriers to telemedicine: patients will always lose
The online care delivery model has the potential to make healthcare affordable and accessible to millions of Americans, particularly in rural regions where access to healthcare is even more difficult. But right now, too many states are closed-minded to this potential. Antiquated laws, confusion, and mistrust by states will hold progress back.

Healthcare professionals and providers must work state by state with legislators, medical, and nursing boards to assess which laws work with this model and which ones need to be amended to allow maximum access to quality online care. Understanding the barriers faced by the online delivery model and then addressing them is the next big step for the development of this important system. This is a complicated issue, but the stakes are high and states have to get it right.

Catherine Bitzan of Gray Plant Mooty also contributed to this essay.

Though the online exchange of medical records is central to the government's Meaningful Use program, the effort to make such transactions routine has just begun. Also in the Barriers to Health Information Exchange issue of InformationWeek Healthcare: why cloud startups favor Direct Protocol as a simpler alternative to centralized HIEs. (Free registration required.)

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JeremyJ089
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JeremyJ089,
User Rank: Apprentice
12/5/2013 | 11:59:29 AM
Re: Do you have model legislation in mind for online healthcare?
Good question.  It's possible.  Some states that have the in-person exam requirement appear to only require a single in-person meeting to establish a bona fide patient-provider relationship such that the provider can later treat and prescribe remotely, rather than require an in-person exam every time the provider wants to treat or prescribe.  It really depends on the state's requirement for establishing a bona fide patient-provider relationship.  Your example also implicates NP and PA scope of practice issues.  For example, if the PA meets with the patient and the PA does not have prescriptive authority under state law, can the PA establish a bona-fide patient-provider relationship that would allow the physician to prescribe remotely?  Finally, there may be physician collaboration/supervision requirements under state law that require the physician to actually be on site supervising the PA or NP.   

 

 
Lorna Garey
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Lorna Garey,
User Rank: Author
12/4/2013 | 12:26:32 PM
Re: Do you have model legislation in mind for online healthcare?
Would a feasible workaround be to have a PA or nurse practioner to do the in-person exam, and the physician could be remote, or must the physician be on site?
JeremyJ089
IW Pick
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JeremyJ089,
User Rank: Apprentice
12/4/2013 | 12:10:23 PM
Re: Do you have model legislation in mind for online healthcare?
Thanks for your question Lorna.  Supporters of the in-person exam requirement would argue that (1) a provider (physician, NP, etc.) cannot accurately assess a patient's health care needs without physically observing the patient in person; and (2) as you note, requiring an in-person exam serves to prevent online "drug mills," which usually presribe lifestyle drugs like viagra to massive numbers of patients based on an online questionnaire completed by the patient and with no interaction (not even by phone or email) between the prescriber and the patient.  Many of the legitimate online care models are used to treat low-level conditions like the flu, acne, etc. -- conditions that shouldn't require an in-person examination, particularly with the use of sophisticated online questionnaires and remote interactions with the practitioner (whether by phone, email, or video conference).

 

 
Lorna Garey
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Lorna Garey,
User Rank: Author
12/4/2013 | 11:59:18 AM
Re: Do you have model legislation in mind for online healthcare?
What's the reasoning for those laws? Wellbeing of patient or cutting down on physicians prescribing drugs in a shady fashion, or a bit of both?
Jeremy L Johnson
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Jeremy L Johnson,
User Rank: Apprentice
12/4/2013 | 11:28:10 AM
Re: Do you have model legislation in mind for online healthcare?
David, great question.  The biggest hurdle faced by providers seeking to engage in remote consultations is the requirement under many state laws that a patient-provider relationship be established by an in-person, face-to-face encounter.  There are workarounds for most of the other hurdles, e.g., corporate practice of medicine laws. If the provider's IT infrastructure is secure, the benefits of providing patients greater and more efficient access to health care, far outweighs any risk of breaching patient privacy.  HealthPartners' virtuwell is an excellent example of a highly sophisticated and secure online care model.  If states would abolish the requirement of the in-person meeting, that would be a huge step in paving the way for more remote care delivery.   
Jeremy L Johnson
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Jeremy L Johnson,
User Rank: Apprentice
12/4/2013 | 11:05:38 AM
Re: Apps
Alex, you're absolutely correct that the rollout process for medical apps is extremely complicated given the lack of a standardized set of rules.  I think a standardized set of federal laws would be a step in the right direction but even if a standardized set of federal laws is established, providers and e-health businesses will continue to face conflicting state laws.  It's possible though that if a standardized set of federal laws is established, that states may simply incorporate those by reference into their own laws, like some have done with respect to HIPAA.  
Alex Kane Rudansky
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Alex Kane Rudansky,
User Rank: Author
11/26/2013 | 10:19:40 AM
Apps
I've seen issues with online prescriptions and apps. With each state having different laws, the rollout process for some medical apps is extremely complicated. I wonder if we'll ever see standardized federal laws about this.
David F. Carr
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David F. Carr,
User Rank: Author
11/25/2013 | 11:03:24 AM
Do you have model legislation in mind for online healthcare?
I'm wondering if there's a particular model you favor for opening up more possibilities for remote consultations, while still providing consumer and patient protection.

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