The Growing Role of Telehealth and Possible Pitfalls for Providers

Long wait times and difficulty for a patient to get convenient doctor’s appointments have long been issues for patients seeking medical treatment.  The expansion of individuals with health insurance due to the Affordable Care Act will cause the issue to grow as more individuals have access to health care services they previously did not.  With the growing strain on the system, and the accompanying stress, providers need to find creative solutions to keep their patients, and themselves, happy. 

Technological advances that enable the use of “telehealth” services provide one such opportunity. Telehealth technology allows providers to see their patients as well as patient’s tests and results through remote communication, as well as communicate with other physicians in consultation remotely along with having the ability to share information on their patients with the physicians in consultation.

Mental health, particularly psychiatric services, stands to benefit greatly from the proliferation of telehealth services. Since such consultations require minimal direct physical interaction with the patient, providers in mental health fields can effectively provide a substantial portion of their professional services through telehealth systems.  Telehealth technology also can help fill a niche for such providers in the healthcare marketplace.  The demand for psychiatric services is growing quickly, though the number of psychiatrists is not keeping pace.[1]  Telehealth provides an opportunity for those already in the field to increase the number of patients they can see by providing easy access at locations the provider would or could not normally be.  This also provides an opportunity to increase patient satisfaction, as patients can see a mental health specialist from home or another convenient location, and not worry about getting to the doctor’s office or waiting in the waiting room.  While mental health’s stigma is fading, the unfortunate stigma some still feel in seeking mental health care can be alleviated in part by using mental health from a remote location, which could further increase patient use and help providers reach more patients.

Mental health is not the only field that stands to benefit from telehealth technology. Radiologists, for example, can read scans that are transmitted to them electronically from anywhere.  Providers that might not have the resources to provide full radiology services could take advantage of the technology in this manner as well.

While telehealth offers real opportunities for patients and physicians, providers must be wary of the legal issues telehealth may cause.  Telehealth can open up privacy, licensure, and billing issues, to name just a few.  Providers must address these issues before they take advantage of the benefits telehealth offers.

One of the most obvious issues in telehealth is privacy.  Telehealth necessarily requires the transmission of incredibly sensitive patient information over the internet (or telephone).  A provider that does not take proper safeguards, such as data encryption, may open his or herself to HIPAA liability.  There are companies that offer software and services and which provide the technological and regulatory know-how to ensure the data transmission complies with privacy laws and regulations. However, there is a low-tech component that physicians must be aware of as well. Since a telehealth conference can be held practically anywhere, the physician must be cognizant of the environment that both he or she and the patient is in while participating in the consultation. Just as a physician must be wary of discussing patient information in hallways, a physician providing telehealth services must remain aware of the environment he or she is in when speaking with the patient. While technology allows a telehealth conference to occur nearly anywhere, HIPAA privacy regulations must be considered in every context of physician-patient interaction.

Providers also run the risk of violating state licensure laws if their telehealth practice extends too far. Most states, New York included, consider the “practice of medicine” to occur where the patient is located. This means a physician licensed in New York, providing services in New York can still violate Massachusetts’ (for example) prohibition on the practice of medicine without a license. If the patient is in another state and the physician is not licensed in that state, the physician may well violate the state’s laws by providing a consultation to that patient. Additionally, physicians must be wary of states that all together ban telehealth practice. Oklahoma, for example, recently took severe punitive measures against a physician that was seeing patients and prescribing medication to them via Skype.[2]  Finding out which states permit and prohibit telehealth is often not as easy as it may seem.  Since telehealth is a rapidly growing and relatively new field, states often do not have statutes or regulations specifically addressing telehealth practice.

Finally, physicians providing telehealth services cannot be lulled into complacency using technology to see patients. While the physician may be able to easily record patient encounters or become distracted without the patient in the room with him or her, it is still absolutely necessary to keep detailed medical records of patient encounters. Losing focus or relying on aspects of the technology to fill in gaps in the medical record later may leave a physician with incomplete notes, which could present significant problems with both payors and state authorities should either audit patient records in the future.

These concerns are just a sampling of the legal issues that telehealth may pose. However, with these issues comes significant opportunity for providers willing to embrace the technology. Providers using telehealth services have the opportunity to see more patients in areas they otherwise could not reach and provide valuable services to individuals who otherwise may not have been able to receive the care they need. Perhaps most importantly, telehealth offers an opportunity, if done correctly, to make patient encounters less stressful and more effective for everyone involved.

Further updates on the state of telehealth and related legal developments can be found in future editions of this bulletin.