Although there is no universally agreed-upon definition of what constitutes telemedicine, generally speaking it is the use of telecommunications devices by physicians and health care providers to remotely diagnose and treat patients. Telemedicine is also utilized by insurance companies and employer-sponsored health plans. UnitedHealthcare recently expanded a pilot wellness program with telecommunications company Qualcomm to provide wearable fitness trackers to employees free of charge and to use the data collected to offer discounts on premiums. But as with any new technology, legal compliance is never as simple as it might seem.

Licensure and Regulation

Navigating the regulatory issues and licensing requirements related to providing telemedicine – whether as a provider, a health plan or a technology company – can be challenging. In Florida and Texas, a physician-patient relationship may be established by telemedicine. In Georgia, an in-person consultation is generally required before a physician may treat a patient by telemedicine. Extra compliance challenges arise when telemedicine is practiced across state lines. In many cases, a physician in one state who treats a patient by telemedicine in another state must have a medical license in both states. Telemedicine also raises significant patient privacy issues under the Health Insurance Portability and Accountability Act (HIPAA). While providers are required to keep their patients’ health information secure, telemedicine inserts additional players into the mix. The company providing the telecommunications services will have access to patients’ health information, but under HIPAA, the provider, or, in the case of telemedicine services offered through employer health plans, the health plan itself, has the legal responsibility to ensure the information is kept secure. Providers and health plans should have strong privacy-protection agreements with the telemedicine companies providing the services.

Payment for Telemedicine

Even if licensure and regulatory hurdles are cleared, providers are not likely to practice telemedicine if they cannot get paid for it. Not surprisingly, different payors have different rules. Under very limited circumstances, Medicare Part B (i.e., the portion of Medicare that covers outpatient services like doctor visits) covers some telemedicine services. Medicare will reimburse office visits and consultations that are provided (1) to a patient living in certain rural areas (2) by a doctor or certain other health care provider (3) who is not at the patient’s location (4) using an interactive two-way telecommunications system.

However, the patient must be in a doctor’s office, hospital, rural health clinic, skilled nursing facility or other health facility. In contrast, some Medicare Advantage plans reimburse telemedicine on more generous terms than Medicare Part B. Medicaid leaves the question of whether, and how, to reimburse providers for telemedicine to the individual states. Likewise, whether private insurance reimburses telemedicine is also up to the individual states and insurance companies.

As technologies continue to advance, state and federal laws and guidelines on telemedicine will likely continue to liberalize, creating a more favorable telemedicine landscape. Providers, health plans or companies desiring to utilize telemedicine are wise to contact legal professionals to ensure they are complying with the myriad requirements. The promise of innovation in telemedicine is currently tangled in regulation.

Quinn Baker is an associate in SGR’s Health Care Practice. qbaker@sgrlaw.com.