April 24, 2017 Telemedicine, often used interchangeably with telehealth, is commonly defined as the use of medical information exchanged from one site to another via electronic communications to improve a patient s clinical health status. ISMS policy defines telemedicine as: the medical evaluation, diagnosis or interpretation of electronically transmitted patientspecific data between a remote location and a physician licensed to practice medicine in all its branches, that generates interaction and/or treatment recommendations; and as part of any telemedicine network, the transmission of electronic patient-specific data must be of sufficient quality to allow the receiving physician to render a valid and appropriate medical opinion. It includes a variety of services, including two-way video, email, smart phones, and kiosks. i Although it has been around for over 40 years, use of telemedicine is expanding and becoming a key part of the operations of physician offices and hospitals, as well as patients homes. ii There are three main categories of telemedicine methodologies: store-and-forward, remote monitoring, and real-time/interactive services. Store-and-forward telemedicine is the transmittal of medical data, such as medical images and biological signals, to a physician or medical specialist for assessment. This may involve a primary care or allied health professional providing a consultation with a patient or specialist assisting the primary care physician in rendering a diagnosis. For example, images of a patient s skin condition can be uploaded into the patient s electronic health record by the patient s primary care physician, and a specialist can later review those images and make comments in the record. Remote patient monitoring allows physicians to monitor a patient remotely using various technological devices, which collect and send data to a home health agency or remote diagnostic testing facility. This method is commonly used for chronic disease management, and devices can capture blood pressure, glucose levels, and heart activity. Interactive telemedicine provides real-time, face-to-face interaction between patient and physician through audio and video technology. In some circumstances, it can be used to deliver such care as the diagnosis, consultation, treatment, education, care management, and self-management of patients. iii These three telemedicine methodologies can also be delivered through numerous models, such as: direct-to-consumer, kiosks, EHR systems, chain stores and pharmacies, or clinics with physicians or site-presenters. Apple and Google have developed healthcare platforms, such as HealthKit and Talk to a Doctor Now, and direct-to-consumer brands include Teladoc and DoctorOnDemand.
Page 2 Proponents of telemedicine cite four key benefits: improved access, cost efficiencies, improved quality, and patient satisfaction. Through the use of telemedicine, patients in distant areas are able to access physicians, and physicians are able to reach patients outside their offices. Additionally, there is evidence that telemedicine is successful at reducing the cost of healthcare through better management of chronic diseases, reduced travel times, and fewer or shorter hospital stays. Quality of telemedicine services has been proven to be as good as traditional in-person consultations, and patient support has been high, due to reduced travel times and related stresses for the patient. iv The use of telemedicine as a stand-alone service that does not involve an ongoing patient-physician relationship can create unique challenges, especially with respect to continuity of care. In the absence of an ongoing patient-physician relationship, such as when a patient seeks acute care directly from a commercial or other third-party entity that provides telemedicine services (e.g., through a telemedicine kiosk or an online, on-demand service where patient-physician relationships are established outside the patient s regular source of care), such telemedicine providers should: Ask the patient to identify his/her existing medical home and/or treating physician, and seek consent from the patient to provide that physician with a record of the patient encounter; Within 24 hours of an encounter, make available to the patient and to his/her designated physician, if applicable, a complete copy of the medical record associated with the encounter; and At the end of the encounter, provide the patient with a summary of the telemedicine encounter, including instructions for any follow-up care the patient should seek from his/her primary physician. In general, the appropriate use of telemedicine has the potential to serve as an important alternative to in-person care, particularly in cases where access to care is limited. Telemedicine in general may also generate cost savings in certain situations, particularly in instances where a patient requires long-term monitoring for a chronic condition that is being managed by a regular, treating physician. Telemedicine may not be an appropriate substitute for in-person care in all cases. As telemedicine technology continues to evolve, physicians are encouraged to use their best clinical judgment when treating patients via telemedicine, either as part of stand-alone telemedicine services or as part of an ongoing course of care. However, hurdles remain. Part of the issue is state law that is unable to keep up with the advances in technology. Illinois law defines telemedicine as the performance of any of the activities listed in Section 49, including but not limited to rendering written or oral opinions concerning diagnosis or treatment of a patient in Illinois by a person located outside the State of Illinois as a result of transmission of individual patient data by telephone, electronic, or other means of communication within this State. v However, telemedicine is not an out-of-state issue only it also concerns patients living in remote communities in Illinois that do not have the ability to easily access physicians licensed and practicing within Illinois. The Illinois Administrative Code demonstrates a similar, dated concept. The Department of Healthcare and Family Services rules define
Page 3 telemedicine as the use of a telecommunication system to provide medical services for the purpose of evaluation and treatment when the patient is at one medical provider location and the rendering provider is at another location. vi Again, this does not capture the concept of various business models, such as kiosks or use of smartphones, which now exist. In addition to state law and regulations that do not adequately address the concept, there are numerous other concerns surrounding the practice of telemedicine. One key issue is the establishment of the physician/patient relationship. Ideally, a physician providing treatment via telemedicine will have an established physician/patient relationship with the patient based on an in-person, face-to-face exam. However, if such a relationship has not previously been established, the physician or other practitioner providing care shall take appropriate steps to establish a physician-patient relationship by use of two-way audio-visual interaction or store-and-forward technology, provided that the applicable community standard of care and state medical practice laws are satisfied. To the extent possible, patients receiving care via telemedicine, including initial visits, follow-up care, and ongoing remote monitoring, should have in-person access to clinical or care management personnel who work directly in a team-based approach with the physician engaged in the telemedicine practice. An additional issue is the ability of physicians to prescribe medications through telemedicine models. The Ryan Haight Online Pharmacy Consumer Protection Act restricts prescribing controlled substances through telemedicine. It prohibits delivering, distributing, or dispensing of controlled substances via the internet without a valid prescription, and a valid prescription means a prescription that is issued for a legitimate medical purpose in the usual course of professional practice by a practitioner who has conducted at least 1 in-person medical evaluation of the patient or a covering practitioner. vii The practice of telemedicine is defined as the practice of medicine by a practitioner who is at a location remote from the patient and is communicating with the patient or health professional treating the patient via a telecommunication system, and the patient is being treated by and physically located in a DEA-registered hospital or clinic, or while the patient is being treated by, and in the physical presence of, a DEA-registered practitioner. viii On a state level, Illinois law allows for pharmacists to fill prescriptions for controlled substances issued by a practitioner actively licensed in another US jurisdiction and who holds an active DEA registration in conformance with the Controlled Substances Act. ix Additionally, AMA guidelines state that if telemedicine technology is used to establish a physician-patient relationship, a video component is necessary and telephone calls/email do not suffice. Once that relationship is established, medication can be prescribed. x Licensure is also an important issue that must be considered when providing telemedicine services. Illinois law states that the practice of medicine is a privilege and that the licensure by this State of practitioners outside this State engaging in medical practice within this State and the ability to discipline those practitioners is necessary for the protection of the public health, welfare, and safety. xi Thus, to provide telemedicine services to patients located in Illinois, a physician must be licensed to practice medicine in Illinois. Not all states treat this matter the same, and it is recommended that physicians review the medical practice laws in the states where they are considering providing telemedicine services. Physicians must be cognizant of where their potential
Page 4 patients are physically located. It is important to note that Illinois does not consider the following to be telemedicine: periodic consultations between a person licensed under the Medical Practice Act of 1987 and a person outside the State of Illinois; a second opinion provided to a person licensed under the Medical Practice Act of 1987; and diagnosis or treatment services provided to a patient in Illinois following care or treatment originally provided to the patient in the state in which the provider is licensed to practice medicine. xii For example, a situation in which a patient resides in Rockford, Illinois but receives treatment via a healthcare portal from a physician located and licensed in Wisconsin raises licensure issues. While this practice may be permitted in Wisconsin, Illinois law requires the physician to be licensed in Illinois, as the patient is located in Illinois. However, if that patient initially received in-person treatment in Wisconsin from that physician and then received treatment services over the phone from the physician after the patient returned to Illinois, that physician is not required to be licensed in Illinois. Similarly, when a patient of an Illinois physician chooses to go on an extended vacation out of state, that physician is not prohibited from being consulted periodically about their care concerns. State participation in the Interstate Medical Licensure Compact may lessen concerns related to this issue by facilitating licensing in multiple states for qualified physicians, but this has not yet been adopted on a national level. State licensure standards must be maintained in any telemedicine practice, and be consistent with in-person care. In the case of an ongoing physician-patient relationship, physicians should be allowed to provide care to existing patients while the physician or patient is traveling out of state. In addition, telemedicine encounters should ensure transparency with respect to the specific training, credentials and licensure of the individual providing care via telemedicine. Scope of practice laws and regulations with respect to requiring non-physicians to have a written collaborative or supervisory agreement with a physician in order to diagnose and treat patients and prescribe medications in Illinois should be maintained in a telemedicine arrangement. The unique circumstances of a telemedicine visit (e.g., the inability of a physician or other health care provider to assess the patient in-person with physical interaction as necessary, possible absence of past medical records) indicate that there are situations in which, ideally, initial telemedicine visits should be with a physician. Thereafter, depending on the patient s condition, telemedicine visits conducted by a mid-level practitioner may be appropriate. In particular, patients seeking initial care for an acute condition should be able to access a physician via the telemedicine service. Ongoing treatment of chronic conditions could be appropriately managed by a nonphysician practitioner. In order to ensure patients using telemedicine have access to the appropriate care, telemedicine services should provide sufficient access to physicians and practitioners trained in a range of specialties, so that patients can be routed to the most appropriate physician to address their specific concerns or to manage their specific conditions. The need for reimbursement for providing telemedicine services is also an important consideration. Currently, there are inconsistencies in how public and private payers will pay for telemedicine services. Medicare will pay for a narrow list of Part B services provided via telemedicine, including initial and follow-up inpatient consultations, office or other outpatient visits, psychiatric diagnostic interview examinations, end-stage renal disease related services, neurobehavioral status exams,
Page 5 screenings for sexually transmitted infections (STIs) and high intensity behavioral counseling to prevent STIs, intensive behavioral therapy for cardiovascular disease, and transitional care management services. xiii However, originating sites where Medicare beneficiaries can receive covered telemedicine services are limited to qualified centers in rural Health Professional Shortage Areas, counties outside metropolitan statistical areas, and areas approved by the government for demonstration of telemedicine. xiv The telemedicine services must be interactive audio and video with real-time communication, and storage-and-forward services are only available in Hawaii and Alaska. xv Illinois Medicaid provides coverage for telehealth services, which is defined as services provided xvi via a telecommunication system. In order to qualify as a telehealth service, a physician or other licensed health care professional must be present at all times with the patient at the originating site, the distant site provider must be a physician, physician assistant, podiatrist, or advanced practice nurse licensed in Illinois or in the state where the patient is, the originating and distant site providers must be in good standing with the Department of Healthcare and Family Services, and the system used must be able to allow the consulting distant site provider to examine the patient sufficiently. At a minimum, the system must be able to transmit clearly audible heart tones and lung sounds, in addition to clear video images of the patient and any diagnostic tools, such as radiographs. xvii Telehealth services can also be used for face-to-face encounters needed for home xviii health care services. Currently, there is no telemedicine insurance coverage or payment parity requirement in Illinois. States that have coverage parity require health plans to cover telemedicine services if those services are covered in-person. Payment or reimbursement parity requires reimbursement of those telemedicine services on the same basis or rate as if performed in-person. The Illinois Insurance Code discusses telehealth services, and states that an individual or group policy of accident or health insurance that covers telehealth services cannot require that an in-person contact occur between a health care provider and a patient, and that the deductibles, copayments, or coinsurance applicable to services provided via telehealth services cannot exceed those required by the individual or group policy for the same services provided in-person. xix It is the policy of the ISMS to support mandating physician remuneration for telemedicine services. In general, ISMS endorses the concept of telemedicine and seeks to ensure that physicians may bill and be reimbursed for telemedicine services. As long as services provided by telemedicine meet the criteria of safe and effective treatment consistent with practice guidelines, physicians should be reimbursed for such services. Telemedicine providers should also consider fee-splitting and kickback prohibitions. In Illinois, such fee-splitting prohibitions prohibit percentage-based compensation arrangements for marketing and subscribing to a preferred provider list, for example. xx Additionally, corporate practice of medicine prohibitions may apply, depending on the set-up of the telemedicine model. xxi Physicians should also be aware of various risk management considerations when providing telemedicine services. In addition to establishing a physician/patient relationship, it is important to provide patients with the HIPAA notice of privacy practices, in addition to executing the appropriate HIPAA authorizations and obtaining a patient history as you would in an in-person
Page 6 visit. The standard of care is not lowered by virtue of practicing through a telemedicine model, and delivery of telemedicine services should follow evidence-based guidelines. xxii Proper documentation is paramount, and storage of such documentation must be considered. Policies and procedures should be developed for continuity of care, referrals for emergency services, termination of the physician/patient relationship, and data encryption. Professional standards guiding the practices of telemedicine should be the same as for in-person care delivery, with specific professional standards developed to accommodate circumstances unique to the use of telemedicine. Examples could include standards related to charting, documentation of verifiable physical findings and vital signs, and patient follow-up instructions. Special consideration should also be given to standards regarding transparency of care provided via a telemedicine service and safeguards regarding privacy. Providers delivering care via telemedicine must comply with laws and regulations related to patient privacy and access to medical records. Patients should be advised of the importance of using secure communication methods to initiate or participate in a telemedicine visit. i What is Telemedicine? Am. Telemedicine Org., http://www.americantelemed.org/abouttelemedicine#.vkow3f4x58e (last visited Nov. 11, 2015). ii Id. iii Coverage of and Payment for Telemedicine, Am. Med. Assn. Council on Medical Service, CMS Report 7-A-14. iv What is Telemedicine? Am. Telemedicine Org., http://www.americantelemed.org/abouttelemedicine/what-is-telemedicine#.vkohe14x58f (last visited Nov. 11, 2015). v 225 ILCS 60/49.5 vi 89 Ill. Adm. Code 140.403. vii 21 U.S.C. 829(e). viii Id. ix 77 Ill. Adm. Code 3100.430. x Frequently Asked Questions, Am. Med. Assn., available at http://www.amaassn.org/ama/pub/physician-resources/legal-topics/faqs.page (last visited Nov. 11, 2015). xi 225 ILCS 60/49.5. xii Id. xiii xiv xv xvi 89 Ill. Adm. Code 140.3 and 89 Ill. Adm. Code 140.403. xvii 89 Ill. Adm. Code 140.403. xviii 89 Ill. Adm. Code 140.471. xix 215 ILCS 5/356z.22. xx 225 ILCS 60/22.2. xxi 225 ILCS 60/3 and 225 ILCS 60/50. xxii