Private payer parity laws generally require private insurers and health maintenance organizations to cover, and in some cases also reimburse, for the provision of telehealth services in the same manner and at the same level as comparable in-person services. These laws are enacted at the state level, creating a complicated framework within which insurers must operate. At this point, most states have implemented some form of private payer parity law, although the specifics of each state’s laws vary. One of the most common is a rule such as Montana’s, which requires insurers to offer coverage for health care services provided by a health care provider by means of telemedicine if the services are otherwise covered by the plan. Some states, like Iowa, only mandate parity within their Medicaid programs without extending the mandate to private payers. Other states only require parity for certain types of services, like mental health services in Alaska. Lastly, Illinois and Massachusetts, require parity only when insurers opt to provide telehealth services.

In the 2017 legislative session thus far, two more states have enacted private payer parity laws. In April, North Dakota enacted its law, SB 2052, which prohibits policies that provide health benefits coverage to be delivered, issued, executed, or renewed that do not provide coverage for health services delivered by means of telehealth. Although SB 2052 does not require reimbursement for telehealth to match in-person services, it does permit establishing reimbursement for telehealth services through negotiations conducted by the insurer with the health services providers in the same manner as used for in-person services. At the end of June, New Jersey passed its law, requiring health benefits plans to “provide coverage and payment for health care services delivered to a covered person through telemedicine or telehealth, on the same basis as, and at a provider reimbursement rate that does not exceed the provider reimbursement rate that is applicable, when the services are delivered through in-person contact and consultation in New Jersey.” Pennsylvania’s bill, prohibiting a health insurance policy or ancillary service plan from excluding a health care service for coverage solely because the service is provided through telemedicine, is still pending.

Recent efforts in other states to enact telehealth private payer parity laws have not been as successful. A number of parity bills died in the last legislative session, including in Iowa, Kansas, Idaho, and Massachusetts. A bill in Florida that would have created tax credit for health insurers and health maintenance organizations that cover telehealth services also failed. At present, 15 states do not yet mandate private payers to cover and reimburse telehealth services at the same level as in-person health care services. In addition to the aforementioned, Alabama, Illinois, North Carolina, Ohio, South Carolina, South Dakota, Utah, Wisconsin, West Virginia, and Wyoming all lack such laws or regulations.

We continue to track the progress of bills in state and federal legislatures. If you have questions on coverage and reimbursement for telehealth services, please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

Telehealth continues to be a hot topic of state and federal legislatures. Texas, for example, recently joined the rest of the states in no longer requiring initial in-person visits before being able to provide telehealth services.

The Texas legislature enacted the major telehealth bill SB 1107 on May 19, 2017, and the governor signed the bill into law shortly thereafter on May 27, 2017. As reported in our prior post, Texas had considered that, if passed, this telehealth bill would allow patient-physician relationships to be established via telemedicine without requiring an initial in-person visit. Prior guidance from Texas Medical Board required an in-person physician-patient interaction before a visit via telehealth, specifically in prescribing medication. The Texas Medical Board’s telemedicine FAQs are being revised as a result of this enacted law.

This law’s enactment would also effectively bring to an end the years long battle between a telehealth provider and Texas Medical Board. In 2015, a telehealth provider brought legal action against the Texas Medical Board and its telehealth restrictions. This litigation was twice stayed to allow for such a resolution to occur.

Additionally, the Federal Trade Commission was investigating the Texas Medical Board for possible antitrust violations due to its guidance that restricted the practice of telemedicine and telehealth in Texas. However, on June 21, 2017, the Federal Trade Commission announced that it will close its investigation into the Texas Medical Board as a result of the Texas legislatures enacting the law that overrode the board’s telehealth restrictions.

This Texas telehealth law is important because of the large telehealth market that Texas represents. The passage of this law removes the hurdle to allow telehealth providers to start operating or expand operations in the state with the second largest population in the nation.

We continue to track the progress of bills in state and federal legislatures. If you have questions on the provision of telehealth services- in Texas or any other state- please reach out to Epstein Becker Green’s Telehealth & Telemedicine team to learn more about our capabilities. Additionally, we are in the process of updating our state survey on telemental health laws. Check back soon for additional details.

At the American Telemedicine Association’s (“ATA”) recent conference in Orlando, a panel of strategic investors discussed the growth of the telehealth industry. The panel delved into topics such as the driving forces for telehealth and which telehealth programs they believe have the ability to gain traction across a broad universe of stakeholders. Based on firsthand experience with deals that have worked, and those that have not, the panel shared their insights and discussed lessons learned, which in turn provided listeners with interesting insight regarding the future of the telehealth industry.

During the conference and prior to the panel session, the panelists took time to wander through the vast ATA exhibit hall, where numerous telehealth providers and platforms showcased their offerings. The investors assessed (and discussed during the panel) three distinct models: (1) “doctors on carts” (2) software delivering a “virtual care” experience, and (3) gadgets. The panelists identified a need for differentiation in the market and recommended greater development of telehealth platforms that are additive to solutions that already exist, as well as encouraging the industry to start moving away from standalone technology. Other highlights from this interesting panel discussion follow below.

Challenges facing the telehealth industry:

According to the panel, telehealth remains a huge business and investment opportunity, but one that is still largely aspirational. One panelist described telehealth as a three-legged stool – technology, operations, and provider networks – and said challenges must be carefully evaluated at each point. In particular, from the technology side, investors must consider how potential telehealth technologies fit into existing operational structures. For example, telehealth platforms and technology targeting the post-acute space face particular hurdles because of basic infrastructure upgrades needed in many post-acute settings.

Not surprisingly, the panel identified reimbursement as one of the greatest challenges facing the telehealth industry. General sentiment among the panel members was that until utilization of telehealth increases, the reimbursement landscape for telehealth services will not meaningfully change. Other challenges to greater utilization of telehealth services include a lack of awareness of telehealth’s capabilities “in the moment” when care is being provided, unfamiliarity with telehealth capabilities by comparatively sicker and older populations (for whom utilization of telehealth might be extremely beneficial), and a perpetual perception that the telehealth industry is “stuck in pilot mode.” Health care providers have the ability to change the way care is delivered by utilizing telehealth technology; however, according to the panelists, stakeholders must continue working to raise awareness of telehealth’s benefits for both patients and providers.

What story should telehealth stakeholders tell to empower providers and payers to adopt telehealth services?

The panelists discussed the importance of “knowing the audience” to whom stakeholders are attempting to sell telehealth business ideas, particularly with regard to potential providers of and payers for these services. Demonstrating the strategic value-add that use of telehealth technology provides is key to the equation.

With respect to providers, access to care is core to their mission, and as such, stakeholders should focus on examples of telehealth services or platforms that increase patient access to care. One successful strategy may be using telehealth technology to meet patients where they want to be met – i.e., in the home – and demonstrating that the technology can deliver the needed care in a lower cost setting. With respect to payers, some believe that any increased volume of telehealth services will drive prices up, and as such, stakeholders need to have their ROI case down in order to demonstrate to payers that telehealth will not just drive volume, but rather will reduce costs and/or improve health outcomes. Notably, several of the panelists recommended that those looking to sell telehealth services and/or platforms focus most heavily on potential opportunities for partnership and collaboration.

How should telehealth providers and companies work to raise capital?

The panelists advised that telehealth providers and companies “do their homework” regarding what their technology can do to help and to enhance an existing health system, as a means toward raising capital. Telehealth companies should be prepared to pursue strategic partnerships that would allow a potential health system partner to seamlessly integrate the telehealth services and/or platform into an existing system and/or platform. Companies should push a market-centric story. The panelists advised against companies pushing the message that their telehealth technology or platform will be a “win-win” for everyone; rather, companies should be prepared to explain the losers (i.e., the competing technologies and platforms that have not worked) and how their technology and/or platform will be able to navigate around that. Companies should acknowledge there is tremendous competition in the telehealth market and should resist saying their technology or platform will be the next WhatsApp of the health care industry.

Should telehealth providers and companies focus on the patient or consumer experience?

Some in the telehealth industry have targeted consumers (i.e., tech-savvy millennials who want the convenience of virtual care) as a potential key driver of growth. However, the panelists advised that a focus on consumers may not be beneficial to the telehealth industry. Interestingly, some panelists recommended that the telehealth industry actually pursue the sickest patients who consume the most health care services and, in turn, drive health care costs. The panelists described early but ongoing collaboration between software engineers and clinicians, in pursuit of looking for the right types of patients to target within specialties such as dermatology, wound care, and behavioral health. The panelists felt there is a compelling ROI case with regard to bringing telehealth to these populations.

How will the telehealth industry evolve and what are the most promising investment opportunities?

When asked to look ahead to what the future may hold, the panelists recommended thinking less of telehealth as a technology and more about how telehealth integrates into consumer solutions. The future of telehealth should focus on how tools enable us to change the delivery system and sites of service, so that many health care services can be shifted from being provided at “brick and mortar” sites like hospitals, to being provided at more convenient and less expensive sites of service such as patient’s homes, cars, on the phone, etc. The panelists discussed that another significant evolution in the telehealth space is providers that are building their own telehealth solutions in-house. Finally, the panelists reiterated that greater development of technology and platforms that manage particular high utilization populations, like those with chronic care conditions, also provide growth opportunities. According to the panelists, the major specialty growth areas within telehealth include tele-ICU, tele-stroke, and tele-behavioral health.

Finally, the panelists advised that investors target potential telehealth offerings that are marketed well and that provide a good patient experience, as these tend to be indicators that will convince health plans to sign on. Furthermore, technology and platforms that are easy to use will have the best chance at widespread adoption.

The Information Sharing and Analysis Organization-Standards Organization (ISAO-SO) was set up under the aegis of the Department of Homeland Security pursuant to a Presidential Executive Order intended to foster threat vector sharing among private entities and with the government. ISAOs are proliferating in many critical infrastructure fields, including health care, where cybersecurity and data privacy are particularly sensitive issues given HIPAA requirements and disproportionate industry human and systems vulnerabilities. Therefore, in advising their companies’ management, general counsel and others might benefit from reviewing the FAQ’s and answers contained in the draft document that can be accessed at the link below.

Announcing the April 20 – May 5, 2017 comment period, the Standards Organization has noted the following:

Broadening participation in voluntary information sharing is an important goal, the success of which will fuel the creation of an increasing number of Information Sharing and Analysis Organizations (ISAOs) across a wide range of corporate, institutional and governmental sectors. While information sharing had been occurring for many years, the Cybersecurity Act of 2015 (Pub. L. No. 114-113) (CISA) was intended to encourage participation by even more entities by adding certain express liability protections that apply in several certain circumstances. As such proliferation continues, it likely will be organizational general counsel who will be called upon to recommend to their superiors whether to participate in such an effort.

With the growth of the ISAO movement, it is possible that joint private-public information exchange as contemplated under CISA will result in expanded liability protection and government policy that favors cooperation over an enforcement mentality.

To aid in that decision making, we have set forth a compilation of frequently asked questions and related guidance that might shed light on evaluating the potential risks and rewards of information sharing and the development of policies and procedures to succeed in it. We do not pretend that the listing of either is exhaustive, and nothing contained therein should be considered to contain legal advice. That is the ultimate prerogative of the in-house and outside counsel of each organization. And while this memorandum is targeted at general counsels, we hope that it also might be useful to others who contribute to decisions about cyber-threat information sharing and participation in ISAOs.

The draft FAQ’s can be accessed here: https://www.isao.org/drafts/isao-sp-8000-frequently-asked-questions-for-isao-general-counsels-v0-01/

What will the telehealth landscape look like under the Donald J. Trump Administration?

The Trump Administration is likely to drive telehealth advancement in a positive direction. For example, President Trump’s plan to reform the Veteran’s Affairs Department includes improved patient care through the use of telehealth technology. There are also some indications that the newly confirmed Secretary of the Department of Health and Human Services (“HHS”), Tom Price, is “telehealth friendly.” Recently, during the congressional confirmation hearings, Price mentioned a tele-stroke program in Georgia as a model of success, and he said he thought there were many things that can be done to mirror that kind of technological expansion. Price also said he is interested in promoting telehealth because it “holds great promise, particularly for rural areas experiencing physician shortages and for patients with limited mobility.” Moreover, Trump’s pick to be the next Administrator of the Centers for Medicare and Medicaid Services (“CMS”), Seema Verma, said in her recent congressional confirmation hearings that she wants to work with Congress to promote the use of telehealth technology. Specifically, she said, “telehealth can provide innovative means of making healthcare more flexible and patient-centric. Innovation within the telehealth space could help to expand access within rural and underserved areas.” Finally, Maureen Ohlhausen, the recently appointed acting chair of the Federal Trade Commission (“FTC”), has in the past spoken favorably regarding the potential of telehealth and has said that the current professional licensure system needs to be rethought given telehealth technology’s potential.

Despite the current focus in Congress on repealing and replacing the Affordable Care Act, telehealth legislation continues to gain traction and bipartisan support on the Hill. In February, a bipartisan group of 37 Senators sent a letter to Tom Price encouraging HHS to support telehealth and remote patient monitoring. Congress also has embraced telehealth advancement with a consistent stream of proposed legislation seeking to enhance the provision of telehealth services. Most recently, Rep. Joyce Beatty (OH-03) and Rep. Morgan Griffith (VA-09) reintroduced the Furthering Access to Stroke Telemedicine (“FAST”) Act that would expand access to stroke telemedicine (also called “telestroke”) treatment in Medicare. Congress also recently introduced HR 766 which would establish a pilot program to expand telehealth options under the Medicare program for individuals living in public housing. Additionally, Congress is poised to consider at least two bipartisan pieces of legislation focused on telehealth. The first is known as the Creating High-Quality Results and Outcomes Necessary to Improve Chronic (“CHRONIC”) Care Act of 2016, which seeks to modernize Medicare payment policies focused on improving the management and treatment of chronic diseases using telehealth technologies. The second is known as the Creating Opportunities Now for Necessary and Effective Care Technologies (“CONNECT”) for Health Act, which seeks to mandate Medicare reimbursement for telehealth services (beyond the current, limited reimbursement framework). Finally, Senator Orrin Hatch (R-UT), the Chairperson of the Senate Finance Committee, recently released his “innovation agenda for the 115th Congress” which encourages the promotion of the “internet of things,” greater broadband investment, and increased device-to-device communication and cross-border data flows.

Continue Reading Telehealth Outlook Under the Trump Administration

Texas and Telehealth: New Bill Would Remove Toughest Hurdle For PractitionersIn recent years, Texas has served as ground zero for a number of the most contentious legal battles surrounding telehealth. This week, State Senator Charles Schwertner, the chairman of the Committee on Health and Human Services, submitted a bill signifying progress for telemedicine and telehealth providers looking to practice in the Lone Star State. The bill, S.B. 1107, would remove one of the toughest hurdles for telemedicine and telehealth practitioners – the face-to-face meeting requirement. Providers would be able to provide services to, and establish physician-patient relationships with, Texas residents through either a synchronous audio-visual interaction or via store-and-forward technology and an audio-only interaction, without ever having to meet the patient in real life. The bill would require the practitioner to use the relevant clinical information required to meet the same standard of care as practitioners providing in-person services.

The bill also would mean changes for the policies of the Texas Medical Board. The legislation signifies that the “telepresenter” requirement, mandating the presence of a healthcare professional when a patient initiates a video consultation, would be eliminated. In addition, the Texas Medical Board, along with the Texas Board of Nursing, the Texas Physician Assistant Board, and the Texas State Board of Pharmacy, would be required to adopt rules defining “valid” prescriptions for telemedicine visits. This would supersede the current, and defunct, policy against telemedicine prescribing, although prescribing abortion drugs would still be prohibited.

The new bill follows the stay recently placed on the litigation between the Texas Medical Board and telehealth company Teladoc. The dispute arose in 2015 when the Texas Medical Board ruled that Texas physicians were prohibited from prescribing to patients without a face-to-face visit. In response, Teladoc filed an antitrust suit and obtained an injunction against enforcement of the rule. The Texas Medical Board then revised the rule, requiring a face-to-face evaluation to establish a physician-patient relationship. Teladoc again filed suit and obtained another injunction. Although the Texas Medical Board filed an appeal, it backed down in October 2016 after the U.S. Department of Justice and the Federal Trade Commission expressed support for Teladoc through amicus briefs. The Texas Medical Board and Teladoc are now rumored to be discussing a settlement.

Much of the recent media scrutiny may suggest that Texas has gotten a bad rap when it comes to telehealth. But have recent reports painted an incorrect or unfair picture of telehealth innovation in Texas? The TexLa Telehealth Resource Center (“TexLa TRC”) certainly thinks so.

Recent media attention focused on Texas telehealth innovation suggests Texas is behind the telehealth curve. In a recent report, the Texas Business Association said, “Texas lags behind other states in establishing a supportive regulatory environment for the expansion of these services,” while the American Telemedicine Association ranked Texas as one of the worst states for provision of telehealth services in its May 2015 and January 2016 [1] state report cards. Additionally, the ongoing litigation between Teladoc and the Texas Medical Board (“TMB”) over a rule that requires physicians to see patients face-to-face before providing remote care has been viewed by some as stifling telehealth innovation until the litigation is resolved. Amicus curiae briefs filed in support of Teladoc pertaining to the ongoing litigation, including one filed just last month by the Federal Trade Commission and the Department of Justice, arguing the TMB has engaged in anticompetitive behavior, further bolsters the view that Texas does not support telehealth innovation.

However, the TexLa TRC has a different perspective. Not only is telehealth innovation in Texas not being stifled, but rather, it is growing. The TexLa TRC receives weekly calls from companies and providers who want to stake their claim in the Texas telehealth market. A recent survey reveals there is support in Texas from patients, providers, and employers to increase access to telehealth services throughout the state. According to the TexLa TRC, Texas has sought to promote telehealth innovation for years, and will continue to do so for the foreseeable future. For example, the Children’s Health System of Texas has successfully penetrated the telehealth market in Texas and has plans to expand these services to markets outside of Texas in the near future. The Hospital’s school-based initiative, one of several telehealth services it provides to patients in the community, began in 2013 in just two Dallas-area preschools but already has spread to 57 Dallas-area schools by early 2016 and has plans to continue to expand.

The outlook for telehealth in Texas is positive. During Summer 2016, various telehealth stakeholders including physicians, telehealth industry groups, and insurance companies, met behind closed doors to draft a compromise over how best to deliver healthcare remotely. The TexLa TRC believes these telehealth stakeholders are still working together to find common ground to redraft telehealth language before the Texas legislature meets in January.

[1] Access to the January 2016 report is available by registering for free with the American Telemedicine Association.

Capitol BuildingAs requested by Congress as part of an appropriations bill signed into law late last year, this month, the Department of Health and Human Services (HHS) released a report highlighting its e-health and telemedicine efforts.  The report makes for interesting reading, and while there are no significant surprises in the report, it offers a clear snapshot of some of the agency’s thinking regarding virtual care.

The first thing I noted in the report is the agency’s view that “telehealth holds promise as a means of increasing access to care and improving health outcomes.”  This is important because it has not always been clear whether the agency views telehealth quite in the same favorable way as other stakeholders increasingly do.  The other thing I noted was the agency’s view that the various alternative payment methods currently being tested may facilitate expansion of telehealth.

Among other things, the report details some of the policy challenges faced by telehealth stakeholders:

  • Significant variability in telehealth coverage from one payer to another.
  • State licensure requirements for clinicians and the administrative burden such requirements impose on clinicians.
  • Credentialing and privileging.
  • Gaps in access to affordable broadband.

HHS indicates that many reforms are currently being tested or implemented to address these challenges. For example, in the area of reimbursement, the agency notes that it is currently testing more expansive telehealth coverage through its Next Generation ACO Demonstration, and highlights MACRA’s incentives for physicians to use telehealth.  The report references the agency’s new rule that permits the use of telehealth modalities to provide Medicaid home health services.

The report also provides an overview of telehealth-related federal activity including:

  • The number of telehealth grants administered by HRSA and SAMHSA.
  • The establishment of the Federal Telemedicine Working Group (comprised of 26 agencies and departments such as USDA and the FCC) to facilitate telehealth education and information sharing.
  • ONC developing an inventory of federal telehealth activities.
  • AHRQ providing an evidence map of the available research regarding telehealth.
  • The continued great telehealth work being done within the VA and reasons why that model may not be scalable.

Overall, the report is an illuminating but relatively unsurprising take on agency thinking.  In particular, two nuggets stood out. First, the agency appears to view chronic disease management as a particularly good fit for telehealth.  In recounting that almost half of all adults have at least one chronic illness and that chronic disease accounts for 75 percent of all health expenditures, the report concludes that telehealth “appears to hold particular promise for chronic disease management.” It goes to reason that any expansion of telehealth under Medicare will probably first focus on chronic disease management. Second, HHS signaled the importance of Medicare Advantage in any telehealth expansion effort, by including a proposal in the President’s budget request for FY 2017 to expand the ability of MA organizations to provide telehealth by eliminating otherwise applicable Part B requirements that certain services be provided only in-person.

We are pleased to present our 50-State Survey of Telemental/Telebehavioral Health (2016), published by Telehealth practice at Epstein Becker Green.

Learn more about the survey here and download your complimentary copy here.  See our full announcement below:

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As Cyber-Counseling Booms, Complex Legal and Regulatory Issues Grow;
Survey Breaks New Ground in Tracking Related Laws

WASHINGTON, DC – May 11, 2016 –Epstein Becker Green (EBG), has released a groundbreaking, comprehensive survey on the laws, regulations, and regulatory policies impacting telemental health in all 50 states and the District of Columbia. The “50-State Survey of Telemental/Telebehavioral Health (2016)” details the rapid growth of telemental health (mental health care delivered via interactive audio or video, computer programs, or mobile applications) and the increasingly complex legal issues associated with this trend.

Telemental/telebehavioral Health Survey
While other telehealth studies exist, this survey focuses solely on the remote delivery of behavioral health care. The survey was spearheaded by René Y. Quashie and Amy F. Lerman, both EBG Senior Counsel in the Health Care and Life Sciences practice in the firm’s Washington, DC, office.

“As telemental health care gains in popularity, it gives rise to a number of significant legal and regulatory issues, including privacy and security, follow-up care, emergency care, treatment of minors, and reimbursement, among other things,” said Quashie. “While some federal laws and regulations (such as HIPAA) apply, most of the issues involve state law, which has resulted in an inconsistent patchwork of laws and regulations that vary widely by state. And there are a number of states that don’t address telemental health specifically in their laws.”

Bridging the Care Gap

The survey begins with a report on the state of telemental health in 2016, highlighting its growing legitimacy (and acceptance by payers) as a treatment option, the barriers to delivery that persist, the high costs of care and prescription drugs, and insurance reimbursement parity issues.

Mental health care lends itself particularly well to remote delivery, since the provider usually need not lay hands on the patient to provide care. In addition, this method helps bridge the gap between the large numbers of Americans (about 60 million) experiencing mental illness and the significant shortage of qualified mental health care providers. Only 40 percent of Americans with mental illness report receiving treatment, and there is one mental health care provider for every 790 individuals.

The EBG survey also reports that new technologies are driving the boom in telemental health, with a significant increase in mobile applications related to mental health (now almost 6 percent of all mobile health apps) and another 11 percent devoted to stress management. There is also a growing number of companies providing “text therapy” services, which allow users, for a flat-rate fee, to text chat with any number of licensed mental health providers.

“Accessing mental health care is a significant challenge for most Americans, with wait times to see a provider measured in weeks and months, rather than days. In addition to long wait times, distance, cost, and stigma present significant barriers to getting care. These are all challenges that telemedicine is uniquely equipped to solve,” said Dr. Ian Tong, Chief Medical Officer at Doctor On Demand.

Deep Dive into Legal Issues

The survey provides a detailed state-by-state analysis of legal issues related to telemental health, such as:

  • Definitions of “telehealth” or “telemedicine”
  • Licensure requirements
  • Governing bodies
  • Reimbursement and coverage issues
  • The establishment of the provider-patient relationship
  • Provider prescribing authority
  • Accepted modalities for delivery (e.g., telephone, video) to meet standards of care

There is also comprehensive data tracking telehealth legislation and rulemaking in progress for each state. Highlights include the following:

  • Psychiatrists, as practicing physicians, must comply with all the obligations that apply to physicians practicing telehealth generally. Very few states exempt mental health from physician requirements despite the fact that many psychiatrists never lay hands on patients. Ironically, Texas is one of the few states that explicitly carves out mental health services from other telehealth requirements.
  • In New York, psychologists may engage in telepractice so long as, among other things, they obtain informed consent from patients describing the benefits and risks of telepractice, and they conduct an initial assessment of each client to determine whether telepractice is appropriate.
  • In Delaware, an individual practicing “telepsychology” must conduct a risk-benefit analysis and document findings specific to issues such as whether a patient’s presenting problems and apparent condition are consistent with the use of telepsychology to the patient’s benefit, and whether the patient has sufficient knowledge and skills in the use of technology involved in rendering the service or can use a personal aid or assistive device to benefit from the service.
  • Kansas requires psychologists and social workers providing telemental health services to obtain the informed consent of the patient before services are provided.
  • In Maryland, physicians (psychiatrists) are required to develop a procedure to prevent access to data by unauthorized persons through password protection, encryption, or other means and to create a policy on how soon an individual can expect a response from the physician to questions or other requests included in transmission.

“As telemental health continues to grow and evolve, it will increasingly be viewed as a viable solution by clinicians, payers, and policymakers,” said Lerman. “At the same time, legal and regulatory issues will continue to proliferate. The survey breaks new ground for anyone navigating this multifaceted legal landscape.”

In addition to Mr. Quashie and Ms. Lerman, EBG attorneys Jonathan K. Hoerner, Bonnie I. Scott, James S. Tam, and Meghan F. Weinberg contributed to the survey.

Click here to download the survey.

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About Epstein Becker Green

Epstein Becker & Green, P.C., is a national law firm with a primary focus on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Founded in 1973 as an industry-focused firm, Epstein Becker Green has decades of experience serving clients in health care, financial services, retail, hospitality, and technology, among other industries, representing entities from startups to Fortune 100 companies. Operating in offices throughout the U.S. and supporting clients in the U.S. and abroad, the firm’s attorneys are committed to uncompromising client service and legal excellence. For more information, visit www.ebglaw.com.

Telemedicine has made great recent strides in terms of greater acceptance and deployment.  That said, a lot of work still needs to be done. Two recent surveys, one of tech savvy consumers and another of health care stakeholders make that case.

The first survey was done on behalf of a consumer health engagement company.  It makes for sobering reading. The survey polled 500 insured consumers who are also users of mobile health applications.  Some interesting findings:

  • Almost 40% have not heard of telemedicine.
  • 42% who have not used telemedicine and prefer an in-person physician visit instead.
  • Mobile Healthcare28% don’t know when it is appropriate to use telemedicine.
  • 14% don’t trust a telemedicine provider to diagnose and/or treat.
  • 14% are not sure if telemedicine services are covered by health insurance

Survey participants were also asked for which services they would consider using telemedicine:

  • 44% for follow-up care for acute illness.
  • 44% for symptom tracking/diagnosis.
  • 44% for medication management/prescription  renewal.
  • 34% for follow-up care for a chronic condition.
  • 31% for remote monitoring of vital signs.
  • 24% for behavioral/mental health.

There was better news in the survey. First, 55 percent of consumers who have access to telemedicine have used it.  Second, and more interestingly, 93 percent who have used telemedicine conclude that it lowered health care costs.  While it is only one survey, I think the results clearly show a consumer education and exposure gap regarding telemedicine that needs to be addressed.  Remember, the survey respondents were tech savvy consumers, and the high numbers of those unaware of telemedicine should be a call to action to those of us who believe in the viability of proper telemedicine.

The second recent survey I would like to discuss was conducted by a leading enterprise software company. The survey polled health care executives and health care clinicians regarding their views on the challenges and objectives of telemedicine programs.  The survey paints a compelling and encouraging picture.  Amongst the highlights:

  • Almost 66% of survey participants indicate that telemedicine is their top priority or one of the highest priorities for their healthcare organizations.
  • The top three telemedicine objectives are:
    • Improved patient outcomes.
    • Improved patient convenience.
    • Increasing patient engagement and satisfaction.
  • Among the most significant obstacles to telemedicine success are reimbursement, lack of integration between telemedicine and EMR systems, and determining ROI.
  • Maturity of telemedicine programs varies widely among service lines and care settings. Those settings requiring highly specialized treatment are more mature than those requiring generalized treatment.
  • Approximately a quarter of those surveyed report that ultimate accountability for telemedicine program success rests with a C-level executive.
    • Another 22% report that accountability is at the vice president level.
  • 75% report that the source of the telemedicine platform is primarily purchased or licensed from a vendor.

Based on this survey, the news from health care stakeholders is quite promising for the future of  telemedicine.  Most respondents view telemedicine as one of their top priorities and more than half show their commitment by making C-level executives or vice presidents accountable for telemedicine program success.

Ultimately, I think the two surveys raise interesting and conflicting perspectives.  On the one hand, many health care stakeholders appear all in or thereabouts regarding telemedicine despite significant obstacles such as reimbursement. On the other, there is an unsettling consumer exposure/education gap with significant segments of consumers unaware of telemedicine.  In the final analysis, consumer awareness and education will need to improve significantly to better drive telemedicine demand and growth.