Healthcare // Policy & Regulation
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7/17/2014
11:45 AM
Jeremy Johnson & Catie Bitzan Amundsen
Jeremy Johnson & Catie Bitzan Amundsen
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Telemedicine Guidelines Leave Plenty Of Questions

Federation of State Medical Boards and American Medical Association telemedicine standards provide a good starting point, but their definitions are too narrow.

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Technology moves fast, and laws and regulations pertaining to telemedicine are struggling to keep up.

The Federation of State Medical Boards (FSMB) and the American Medical Association (AMA) recently issued separate guidelines designed to assist states as they grapple with how to regulate this quickly evolving mode of care delivery. The "Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine" was released by the FSMB, which represents all 70 state and territorial medical certification bodies. It replaces the 2002 Model Guidelines for the Appropriate Use of the Internet in Medical Practice. The AMA released its own set of guidelines, "Coverage of and Payment for Telemedicine".

[Doctors across (state) borders? Read Sorry, AMA: You're Wrong About Telehealth.]

While neither set of guidelines is binding, states are likely to draw on them when examining potential revisions to their own laws and regulations. It is too early to tell whether there will be a nationwide push toward standardization or whether providers, insurers, and vendors must continue to deal with inconsistent state telemedicine laws and regulations from one state to another. The only thing we know for sure is that both sets of guidelines will likely leave state legislators with plenty of questions.

(Source: Wikipedia)
(Source: Wikipedia)

Narrow definitions of "telemedicine" could lead to restricted patient access
Both the FSMB guidelines and the AMA guidelines establish an overly narrow definition of "telemedicine." As a result, they fail to recognize several forms of electronic communications as potentially beneficial, valid modes of healthcare delivery.

The FSMB guidelines define telemedicine as: "the practice of medicine using electronic communications, information technology, or other means between a licensee in one location, and a patient in another location without an intervening healthcare provider." While this definition appears broad, the guidelines further provide that both secure videoconferencing and "store-and-forward" secure communication technology may be part of a telemedicine practice but that, generally, audio-only, email, and instant messaging technologies are not telemedicine. The FSMB definition is not without controversy, with a group of insurers, providers, and patient advocates warning that the definition could restrict access to telemedicine for those patients who strictly rely on audio devices, email, or text messages.

The AMA guidelines define telemedicine as comprising three categories: "store-and-forward," remote monitoring, and (real-time) interactive services, but the AMA similarly carves out audio-only, email, and instant messaging technologies from the definition.

Restricted access will be a significant issue. The definitions proposed by the guidelines would generally require the provider and the patient to have a robust Internet connection in order to conduct "telemedicine," which will be an issue for people in remote, rural areas. There is also the issue of limited accessibility for those with physical impairments. For example, blind patients may be reliant on audio-only interactions.

The definition of telemedicine is likely to evolve in the coming years. As more technologies develop and more medical boards assess statewide Internet capabilities, a more flexible definition will be necessary as more issues and restrictions are addressed.

Is an in-person meeting necessary?
To establish a valid provider/patient relationship, many states require that the initial encounter between the provider and patient be in-person. This is often the biggest hurdle for providers seeking to practice telemedicine.

The FSMB and AMA guidelines both suggest, however, that there may be ways around an in-person meeting. The FSMB suggests that

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Jeremy Johnson is a healthcare attorney with Gray Plant Mooty in Minneapolis where he has significant experience advising healthcare providers on emerging care models, including telemedicine. View Full Bio
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RogerD116
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RogerD116,
User Rank: Apprentice
7/17/2014 | 1:50:09 PM
FSMB Guidelines do not rule out the use of the telephone
Jeremy, the FSMB does not rule out the use of the telephone in patient interactions with physicians.  But a telephone conversation alone between a doctor and an unknown patient does not establish the doctor-patient relationship. There are obvious reasons why it shouldn't and doesn't.  First of all, identification would be a problem.  Also, most states require, as part of the establishment of the doctor-patient relationship, an examination.  The FSMB guidelines allow for a state to permit this to occur via videoconferencing if that is the standard of care.  Unless there is an established doctor-patient relationship, prescribing prescription medication may get the doctor in trouble with his medical board.

For known patients, those who already have established a doctor-patient relationship, the FSMB guidelines do not rule out telephone interactions.  So the "controversy" that the definition "could restrict access to telemedicine" is overblown.  People need to have a "medical home" - a primary care provider - so that when they do have a medical problem they have the option of seeing the doctor in person or calling the doctor for a prescription.

Regarding email contact, that method could be a HIPAA violation waiting to happen if PHI (protected health information) is exchanged in the email. The same for instant-messaging.  Although HIPAA does not require encryption, those who choose not to use encrypted forms of communication must explain why.

If "robust" means broadband, then, yes, an Internet connection would be required for a videoconferencing visit with a physician, primarily as the initial visit in which the doctor conducts a patient exam.  Smartphone users are very familiar with Skype and Facetime.  But they are not meant for confidential medical interaction.  They don't have the same protections that videoconferencing programs have that are designed for medical purposes.  

As to the aspect of vision-impairment, as long as the doctor can see the patient, there is no problem.  The videoconferencing is for the doctor's ability to see and examine the patient.
AmericanMedicalAssociation
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AmericanMedicalAssociation,
User Rank: Apprentice
7/18/2014 | 2:12:19 PM
Fact Check on AMA Telemedicine Policy
Jeremy – While the AMA appreciates your article highlighting our efforts to assist physicians navigate telemedicine issues, we would like to bring your attention to several inaccurate points in your piece.

First, although certain forms of electronic communication are not defined as telemedicine, that doesn't mean the physician cannot or should not use that technology. In fact, physicians have been using the phone, email and fax for years.

Regarding your point on the establishment of in-person consultation, you should know that the AMA has long-standing policy on the ethical obligations of physicians in providing care to patients. We, like many others in the health care community and policy-makers, worked on identifying practices to combat online rogue pharmacies and pill mills. Telemedicine represents technological advancements in communications and in some areas of clinical practice. AMA policy reflects these evolving changes. 

Another important note is that the AMA's recommendation is for a face-to-face exam to occur, in person or virtually, before services are provided. The physician can use any mode of preferred technology to provide services to the patient after the initial first examination has occurred as long as the technology allows them to meet the standard of care for whatever service they are providing. There is also a list of exceptions for services where a face-to-face exam is not necessary to establish the relationship such as physician to physician consultations, pathology and imaging, and urgent care.

Lastly, the whole point of our policy is to provide clear-cut guidance in this area in order to reduce uncertainty, fear and doubt, so physicians can provide the best care possible to their patients.
Jeremy L Johnson
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Jeremy L Johnson,
User Rank: Apprentice
7/19/2014 | 10:27:01 AM
Re: Overlooking A Promising Form of Remote Care
AMA representative and Roger,

Thank you both for your comments.  It's important to have an ongoing dialogue about this issue. 

What's being overlooked here is a burgeoning and very promising form of remote care -- online medical diagnosis and treatment services where patients use the Internet to access a health practitioner who is able to provide advice and treatment, and sometimes prescriptions, for various illnesses and injuries.  This model relies on a sophisticated, algorithm-based questionnaire that arguably does not include an initial face-to-face encounter (in-person or via technological means).  We've seen these models incorporate what we believe to be all of the necessary patient safety protections. 

Our primary concern is with, as you've noted, the AMA's position that a face-to-face encounter must occur first, either in person or via appropriate telemedicine technology and that the AMA guidance can be interpreted to discourage the above form of remote care.  We belive there is a distinct difference between the above form of remote care and the "pill mills" we can agree should be eliminated. 

Our primary concern is not with the method of ongoing treatment following the establishment of a provider-patient relationship.  Our concern is that a promising form of remote care is being overlooked by an overly-narrow view of what consititues an appropriate initial provider-patient encounter. 

 

    

 

 

 
Alison_Diana
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Alison_Diana,
User Rank: Author
7/22/2014 | 3:30:52 PM
Re: FSMB Guidelines do not rule out the use of the telephone
The problem with requiring telemedicine patients to have a primary care physician is that many people today do not have one. Instead, they rely on walk-in clinics or emergency rooms -- or telemedicine, if available. I agree that, in an ideal world, patients would have one doctor as their hub (it's how our family operates!), but for whatever reasons that model exists for fewer patients today than it did 10 or even five years ago. Should telemedicine not be an option for those patients who don't have a GP or access to videoconferencing?
RogerD116
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RogerD116,
User Rank: Apprentice
7/22/2014 | 4:13:56 PM
Re: FSMB Guidelines do not rule out the use of the telephone
As both the FSMB Policy Guidelines and the American Medical Association policy statement state, "audio-only" communication is not the standard of care for establishing the doctor-patient relationship.  Without that established relationship, the only thing someone should be able to get from a doctor on the phone is cautious advice - not prescription medication.

The telephone may be great for conversation but not for purposes of identification. How would a doctor know for sure who the patient is?  He (or she) can't see the patient, but can only hear the patient.  And with no way to perform an examination, the doctor would be accepting the patient's self-diagnosis or going out on a limb with his/her diagnosis. 

Also, there is the issue of informed consent.  If the doctor has no way of really knowing who the patient is, how can the physician be sure that this heretofore unknown patient has given his (or her) consent to treatment?  How could he prove it?    If a problem occurs, the patient could say that the doctor never got his/her informed consent.  It would be the doctor's word against the patient's.  Recordkeeping at the physician end of the phone connection could always be challenged by the patient.  Unfortunately, there are too many people who would take advantage of the telephone communication and look upon it as a way to either get controlled substances or a court award.

 

 
Alison_Diana
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Alison_Diana,
User Rank: Author
7/22/2014 | 5:20:33 PM
Re: FSMB Guidelines do not rule out the use of the telephone
I hear you about 'patients' seeking controlled or abused substances -- and most (if not all) telemedicine organizations I've spoken to refuse to prescribe narcotics or other medications commonly abused (like sleeping pills or anti-anxiety drugs). Often they list them on their website or give a brief recap when patients call, depending on the condition people contact them about. That's a smart approach since it eliminates that concern.

And i certainly understand physicians' worries about not knowing who they're treating, whether there's coercion or falsehood occuring, or something else happening on the (darkened) end of the phone. Perhaps, with such a high percentage of consumers now owning smartphones with video capabilities and the decreasing cost of data sharing, this will soon be a moot worry as anyone wanting to use telemed will soon be able to make a video connection?
RogerD116
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RogerD116,
User Rank: Apprentice
7/22/2014 | 5:31:08 PM
Re: FSMB Guidelines do not rule out the use of the telephone
As it turns out, Alison, that may be happening sooner than later.  About a month ago, Verizon unveiled its new "Virtual Visits" videoconferencing for smartphones. It will first offer the app to healthcare plans for use by their members.  It features encryption which neither Skype nor Facetime offers because they are not meant for confidential medical conversations.  Presbyterian Health Plan in Albuquerque will soon let its members "meet" with physicians using their smartphones (perhaps with the Verizon app). Interestingly, Presbyterian will still require a member see the physician in person before videoconferencing.
RogerD116
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RogerD116,
User Rank: Apprentice
7/22/2014 | 7:30:42 PM
Re: Overlooking A Promising Form of Remote Care
I agree, Jeremy, that it's important to keep the dialogue going.  And the telemedicine industry is responding.  An example of that is what I mentioned in my post to Diana (I apologize for mistakenly using your last name).  Verizon has developed an encrypted smartphone videoconferencing app for doctor-patient interaction.  But, if and until the app meets the approval of the medical community, medical boards will not accept it for establishing the doctor-patient relationship.  Again, neither the AMA or the FSMB is attempting "to discourage the above form of remote care [the telephone]," just the use of it for an initial visit.

Due to the increasing shortage of doctors, I think that you would agree that healthcare is too important to wait until you're sick to find a primary care physician.  Anyone reading this story and these comments owes it to their family and themselves to make that initial visit to a doctor, so that when you do get sick you can call or videoconference with the doctor. 
RogerD116
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RogerD116,
User Rank: Apprentice
7/22/2014 | 7:30:45 PM
Re: Overlooking A Promising Form of Remote Care
I agree, Jeremy, that it's important to keep the dialogue going.  And the telemedicine industry is responding.  An example of that is what I mentioned in my post to Diana (I apologize for mistakenly using your last name).  Verizon has developed an encrypted smartphone videoconferencing app for doctor-patient interaction.  But, if and until the app meets the approval of the medical community, medical boards will not accept it for establishing the doctor-patient relationship.  Again, neither the AMA or the FSMB is attempting "to discourage the above form of remote care [the telephone]," just the use of it for an initial visit.

Due to the increasing shortage of doctors, I think that you would agree that healthcare is too important to wait until you're sick to find a primary care physician.  Anyone reading this story and these comments owes it to their family and themselves to make that initial visit to a doctor, so that when you do get sick you can call or videoconference with the doctor. 
Jeremy L Johnson
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Jeremy L Johnson,
User Rank: Apprentice
7/23/2014 | 12:22:51 PM
Re: Overlooking A Promising Form of Remote Care
Roger and Diana, excellent points. I agree that ideally, every one would have regular access to a primary care physician but as Diana notes, this isn't feasible for everyone (e.g. poor, rural, immobile patients). Roger you're correct that the AMA guidelines view an audio-only interaction as insuffucient to establish the necessary patient-provider relationship to thereafter provide treatment via remote means. I understand why the AMA has taken this position and recognize its efforts to protect patients. But, I'd like to see a more flexible approach on the means for establishing a patient-provider relationship. Again, the example of the sophisticated, algorithm-based online clinic, which does not rely on real-time interaction, but rather, store-and-forward electronic communications, if set up correctly, can provide sufficient protection for patients. I'm aware of several of these online clinics operating throughout the country with great success -- i.e., they have increased access and lowered costs. Mind you, these online clinics are used to treat more common ailments such as the flu, etc. and have features that recommend that a patient see a provider in-person if the ailment warrants it. I just see these online clinics as a great way to handle more common ailments without requiring patient travel, expensive office visits, etc. Jeremy
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