Billings

Virginia Telehealth Summit
Telehealth Legal and Regulatory Issues
Greg Billings
Senior Government Relations Director

Center for Telehealth and e-Health Law
Washington, DC

Objectives

• Telehealth Licensure State Statutes
• Internet Prescribing
• Telehealth Private Payer State
Statues
• Credentialing and Privileging of
Telehealth Providers
CTeL | Thursday, March 18, 2010

Licensure Overview
• Under U.S. law, states are allowed to monitor the practice of
professionals within their boundaries.

– Through licensure, State medical boards are responsible for
regulating physicians and other health care providers within
their own state.

– Licensure is the process by which a state government
validates a health care provider’s credentials and deems the
provider competent to practice medicine.

– Licensure, as it applies to telemedicine, refers to:
 “Issues surrounding the regulations of physicians and
other health care providers who practice telemedicine
between health care facilities in different states.”
(Reid, A Telemedicine Primer)


What to Consider When Practicing
Telemedicine…
• Jurisdiction
– Where is the patient located?
 A majority of State Medical Boards maintain
that jurisdictional authority is attached to the
patient.
– Where is the physician located?
– Does the physician hold other medical licenses?
• Licensure Laws
– Licensure laws vary among states.
– Review each individual state’s licensure statutes
before practicing telemedicine.

Types of Licensure
• Full Medical Licensure for Telemedicine
– 36 states/territories require telemedicine providers to
obtain a full medical license.
 To obtain a full license, a telehealth provider may
need to meet the following requirements:
» Pay licensure fees;
» Pass additional oral and written
examinations; and/or
» Travel for interviews.
• Exceptions
– Direct Consultation
– Limited Encounters
– Limited Time

Types of Licensure (cont’d)
• Special/Telemedicine License
– There are 11 states and 1 territory that grant
telemedicine providers special/telemedicine licenses,
they are:
 AL, GU, LA, MN, MT, NV, NM, OH, OK, OR, TN, and TX.
– These states may require other conditions:
 Maintain a full medical license in another state;
 No ethics violations;
 Not have an in-state office;
 May only practice telemedicine in an ER situation;
 Limited time or “occasionally;” and/or
 Volunteer services.


Licensure Through Exception
• 7 states (HI, LA, MD, MS, MO, WA and WV) grant telemedicine
providers the opportunity to practice telemedicine through a
“licensure exception.”

• These state licensure statutes exempt telemedicine providers
from being required to obtain a full or special/telemedicine
license to administer telemedicine, as long as some conditions
are met, such as:
 Maintain a full medical license in another state;
 No ethics violations;
 Not have an in-state office;
 May only practice telemedicine in an ER situation;
 Limited time or “occasionally;” and/or
 Volunteer services.
– Note: Conditions vary among states. If a physician does not meet the
state’s specific conditions, it is equivalent to the physician practicing
without a license.


Licensure Laws for
KY, NC, TN, and WV
• States that boarder Virginia:

– Kentucky : Full medical licensure required.
– North Carolina: Full medical licensure required.
– Tennessee: Board has authority to grant a limited
purpose/ restricted license.
– West Virginia: Licensure reciprocity will be granted to
those applicants coming from states whose licensure
laws are similar to those of the state of West Virginia. If
licensure laws are less stringent than West Virginia’s,
then full medical licensure will be required.


Consultation versus Practicing

• Can the lines be blurred between consultation
and practicing?
– Consulting physician to primary physician at
the same “level.”
– Consulting physician at different level than
primary physician.
• Can the lines be crossed so that a consultation is
actually practicing medicine without being
licensed in that state?


Prescribing Medication through
Telehealth
• Nearly all states require a bona-fide doctor-patient
relationship in order to prescribe medication.
• Online Medical questionnaires :
– 5 states specifically forbid online questionnaires.
 HI, ID, IN, MN and SC
– 22 states follow FSMB guidelines medical
questionnaires—TN, KY, WV, NC.
– 24 states have no language on medical questionnaires.
 VA is one of those 24 states.
• Defining “bona-fide” doctor patient relationship is the
challenge.
– Is a physical, “touch the patient” examination required?


Telehealth
• Federation of State Medical Boards:
– Relationship is established when physician
agrees to undertake diagnosis and treatment
of patient.
– Patient agrees, regardless of a personal
encounter.
– Treatment, including prescription, based
solely on online questionnaire or consultation
does not constitute an acceptable standard of
care.


Telehealth
• American Medical Association Guidelines:
– Reliable medical history and perform physical
exam;
– Have sufficient dialogue – treatment and risks;
– Follow up to assess outcome;
– Maintain contemporaneous medical record; and
– Include electronic prescription info in record.
• Exceptions:
– Consultation with another physician; and,
– On-call or cross-coverage situations.


Telehealth Private Payer Statutes

• U.S. Department of Commerce estimates 64.4%
of America’s health care is insured through
private payers.
• Assumption that private payers resist
telemedicine coverage.
• AMD Telemedicine Study found 38 programs in
25 states receive private payer reimbursement.
• Over 100 private payers currently reimburse for
telemedicine.
• 10 States have Private Payer statutes: CA, CO, HI,
KY, LA, ME, NH, OK, OR, TX.


Medicare Reimbursement

• Checklists found at www.ctel.org under
“Reimbursement.”
• Reimbursement for facility and professional fees
• Federally designated rural Health Professional.
Shortage Area (HPSA); in county not included in
a Metropolitan Statistical Area; or from a Federal
telemedicine demonstration project.
• Only certain CPT codes eligible.
• Encounter involved interactive audio and video
telecommunications.



• Eligible Practitioners:
– Physician
– Nurse practitioner
– Physician assistant
– Nurse midwife
– Clinical nurse specialist
– Clinical psychologist
– Clinical social worker
– Registered dietician or nutrition professional


• Originating Sites:
– Physician’s office
– Critical access hospital
– Federally qualified health center
– Hospital
– Rural Health Clinic
– Hospital-based or CAH-based renal dialysis
center
– Skilled nursing facility
– Community mental health center


JC Guidelines Since 2004

• Joint Credentialing (JC) hospitals accept
credentialing from other JC facilities.
• JC hospitals OK unless audited by state or the
Center for Medicare & Medicaid Services (CMS).


Impact of CMS Credential/Privileging
Requirements on Telehealth

• Denial of credentialing and privileging by proxy
potentially has a more significant impact than
licensure.
• Licensure impedes interstate practice of
telemedicine.
• Requiring credentialing and privileging of all
telehealth providers impacts the delivery of all
telehealth services.
• Some argue the CMS position will have a more
crippling effect on telehealth than licensure.


Case Study: Legislative Fix for
Credentialing/Privileging by Proxy

• Legislation in Washington seems “far away.”
• Take you through an attempt to fix the CMS
position on credentialing and privileging by
proxy.
• “Sausage making”:
– Not always pretty.
– Goal may not always be evident.
• In this case, objective to preserve credentialing
and privileging by proxy under controlled
circumstances.

Telehealth Action Plan

• Began initiative in December 2008
– Conducted Credentialing Survey.
– Met with Representative Mike Thompson (D-
CA) staff on H.R.2068 Medicare Telehealth
Enhancement Act of 2009.
– 13 important telehealth and remote
monitoring provisions.


H.R.2068 Introduced on 4/23/09

• Gave option of credentialing by proxy between JC
hospitals.

• Did NOT Include Privileging.

• Did NOT include interpretative services.

• Included reference to “Joint Commission.”


Ways and Means Committee Markup

• Staff changes in Representative Thompson's
office.
• CBO gave credentialing a “no cost score.”
• Included in Ways and Means bill.
• "We'll send it to CMS, but . . ."


TLI Letter to Secretary Sebelius

• Signed by 300 telehealth stakeholders.

• “We need a solution.”

• Strategy – Get OAT and HRSA at the table.


Letter from CMS

• Need to protect the patient.
• Hold hospitals accountable by requiring
credentialing and privileging at the originating
site.
• Included language on critical access hospitals.


JC enters the picture

• Deeming authority expired July 2010.

• August – In process of submitting application.

• Two outstanding issues – One is telehealth.


JC Strategy Clear

• Proceed with application.
• Work for a legislative fix.


Born: TLI, JC, ATA Coalition

• Began amendment strategy.
• Deficiencies with Way and Means legislation:
Did NOT cover privileging;
Did NOT cover interpretative services
ie: teleradiology or telecardiology; and
Did NOT cover small hospitals.


Next step

• Worked on modified legislation.

• Rep. Thompson's message:

– “Very long call with CMS.“

• Willing to put credentialing in a certification
letter.
• Vehemently opposed to including privileging.
• If privileging was pressed, all could be lost.


CMS Offer Came in Writing

• Rejected.

• Not a lot of trust between CMS and telehealth.

• Did NOT include privileging.

• Did NOT include interpretive services.


Senate
• Senator Tom Udall introduced S. 2741, the Rural Telemedicine
Enhancing Community Health (TECH) Act of 2009.

• Number of telehealth provisions.

• Credentialing and Privileging:
• Directs CMS to develop workable standards, and
• Holds facilities harmless for using proxy process while
standard are being drafted.

• Tried to get Udall language included in Senate bill.


Next Steps: Administration

• Continual Congressional Involvement.
• Involvement of high-level officials in the Obama
Administration:
– “This CMS guideline will impact telehealth as
we know it today.”
– Does the administration want this to happen
on it’s watch?


Next Steps: Congress

• House:
– Congressman Thompson to introduce new
legislation.
• Senate:
– Senator Udall’s credentialing and privileging
language to be offered to other Senate bills.
• Congressional involvement
– Meetings with CMS.


Data Needed!

• Compiling information on the impact of CMS
position on credentialing and privileging by
proxy:
– Cost numbers: what will it cost to credential
and privilege all telehealth providers?
– Will your program be adversely impacted?
Specifically, how?
– Examples of how remote
credentialing/privileging helped patient care.


Contact for more information

• Greg Billings
– Senior Government Relations Director
Center for Telehealth and e-Health Law
Washington, DC
Phone:202-230-5104
E-mail: Greg.Billings@DBR.com


Billings

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