Health Care and Federal Government and Government & Economic Development and Government and Health Care & Life Sciences and Health Care & Insurance and Technology

SHORT: Obsolete laws, regulations stifle advance of 'telehealth'

January 19, 2013

ShortYou might remember seeing Elroy Jetson sitting in front of a television in the Jetson home, with Astro, his trusty dog, and Jane, his mother, at his side, while the doctor appeared on the screen providing medical care to Elroy.

This scene is no longer so futuristic. In fact, the technology largely exists to make the scenario of seeing a physician from the comfort of your home or some convenient location close to your home possible.

So why isn’t this available? Most of the reasons are simply because the vast state and federal laws and regulations governing health care have not kept pace with the rapid advance of technology.

State and federal governments regulate who may provide care, the types of arrangements in which care can be provided, and who will be paid and how much they will be paid. Many of these laws and regulations are founded in sound principles of protecting the public from unqualified providers and protecting government health care programs from fraud.

However, in their attempts to accomplish these worthy goals, the government inadvertently frustrates innovation. In the case of telehealth, state physician licensure, physician referral laws, anti-kickback laws and reimbursement under government health care programs create barriers to providers’ offering more convenient and potentially more economical care.

Licensure laws are a patchwork of inconsistent requirements, with each state having its own requirements and definitions of what constitutes the practice of medicine. These inconsistencies frustrate adoption of telehealth across state lines because it is sometimes unclear what licenses are required by providers.

While it may seem a rather simple process for a health care provider to become licensed in any state in which it might be required to provide care, the process is difficult and time-consuming.

Additionally, the varying requirements can make licensure in multiple states perilous. Violating the technical requirements (such as failure to meet particular continuing education requirements) can jeopardize licenses in other states.

The federal government and some states have adopted often-complex laws and regulations restricting the types of financial arrangements that can exist among health care providers. These laws and regulations can often result in penalties of several million dollars for inadvertent violations.

Telehealth by its very nature requires speculative investment in expensive equipment and telecommunications services, so parties with the greatest resources are in the best position to provide financing to start a telehealth program. But the laws regulating financial arrangements often prevent or create undue risk when a party assumes the financial burden for the telehealth program.

A large portion of health care in the United States is funded by government programs such as Medicare and Medicaid. Many of these rules and requirements have been written in a way that does not provide for payment when care is provided via telehealth.

While certain pilot projects have been initiated by the federal government permitting reimbursement under government health care programs for certain care provided via telehealth, widespread adoption of reimbursement for telehealth does not exist.

Given that Veterans Administration hospitals have had great success with telehealth, it is likely that legislation attempting to address several of these issues will be introduced in Congress. Veterans Administration studies found that telehealth reduced bed days of care 25 percent and hospital admissions 19 percent, and improved patient satisfaction at substantially less cost per year per patient.

With evidence such as this supporting telehealth and the continuing need to improve health costs, it will be difficult for Congress to ignore telehealth and the need to lower the legal barriers to its adoption.•

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Short is chairman of Hall Render Killian Heath & Lyman’s technology and privacy practice focusing his practice on health IT, privacy and computer security issues relating to health care entities. Views expressed here are the writer’s.

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