Once developed primarily to reach patients in remote locations, telemedicine has quickly transformed into a complex integrated service offering greater options for patient care in our technologically-savvy, fast-paced modern world. Telemedicine has the power not only to break down geographical barriers to care access but to make the entire healthcare delivery model more convenient to all patients. However, integrating a new technology-based service in an established field that has traditionally required personal interaction, especially in a heavily regulated industry, can present significant challenges. As with most innovations, the marketplace is far ahead of the law, causing legal and policy issues and concerns. Hospitals, healthcare providers, and vendors need proactive legal counsel that can warn clients about potential pitfalls while ensuring regulatory compliance and reliable reimbursements in this burgeoning new field.
Legal counsel must work closely with clients to navigate the patchwork of state and federal laws that are constantly evolving in the effort to bring new practices and products to market. Likewise, telemedicine providers must ensure that practices and products are reimbursable by private and government payors alike. How much and which telemedicine services private payors pay for varies widely by state.
In addition to reimbursement issues, telemedicine also implicates licensing issues. Offering services across state-lines raises a particular challenge given the different licensing requirements that are set up by each state individually. Either the doctor must be licensed in the state where the patient is located or in a state that has a cross-state licensing arrangement with the patient’s state. Corporate practice of medicine, state board ethics and discipline procedures, scope of practice, and credentialing are all implicated in new ways by the cross-state practice of telemedicine.
Synchronous telemedicine (real-time patient consultations) demands sophisticated protocols, secure technological resources, and experienced legal counsel regarding cybersecurity issues and legal requirements involved in storing and moving patient information. Like all technology in the healthcare space, telemedicine solutions need to be HIPAA compliant to protect patient privacy. Technology used for telemedicine services needs to ensure high-level security and prevent any breaches of patient personal health data.
In addition to the issues unique to telemedicine’s changing legal landscape, providers, developers, and vendors must also consider legal and regulatory issues that affect all healthcare providers including fraud and abuse, Stark and anti-kickback laws, licensing, professional ethics and discipline, staffing and credentialing issues, and malpractice liability.
Jackson Walker has the experience necessary to navigate the many legal challenges affecting telemedicine so as to minimize risk and maximize business growth for our clients. With the one of the largest Healthcare practice groups in the state of Texas and a cutting edge Cybersecurity practice group, our attorneys are at the forefront of the legal and regulatory issues affecting telemedicine. We assist with telemedicine program assessment, development, and implementation and advise telemedicine providers and related vendors of all kinds, both within Texas and around the country. From guidance on launching a telemedicine platform to advice regarding internet prescribing, our attorneys offer clients the insight, experience, and skill that will help them make the most of this new business innovation.
- Provided guidance to hospital system clients about reimbursement for telemedicine services from Medicare, Medicaid and third party insurers.
- Act as general counsel for asynchronous telemedicine provider offering advice on the emerging field of telemedicine law, corporate structuring, general corporate work, contract review and drafting, healthcare regulatory advice, review of advertisements from a regulatory standpoint, and assistance with due diligence in fundraising initiatives. Advise on licensing issues and the Corporate Practice of Medicine and provide guidance regarding HIPAA regulations.
- Advised hospitals about the barriers to implementation of a telemedicine program.
- Assisted hospital system is setting up telemedicine network.
- Work with large telemedicine provider providing specialty services to hospitals.
August 18, 2021
Navigating Potential COVID Relief and Healthcare Fraud Issues
~10 minutes | With a dense thicket of regulations to comply with, businesses may trigger a governmental investigation if they are not familiar with the complex and changing rules and regulations surrounding COVID relief funds, particularly in the healthcare sector. In this interview about the Department of Justice’s crackdown on fraud, Arthur Gollwitzer discusses how businesses can protect themselves and what to do when approached by the authorities.
March 25, 2021
Virginia Mimmack to Discuss Telehealth Consolidations During UT Law CLE’s Health Law Conference
During the 32nd Annual Health Law Conference, Jackson Walker partner Virginia Mimmack will join Husch Blackwell attorneys Julian L. Rivera and Kate Bechen for a discussion on how companies in the healthcare industry are consolidating.
December 15, 2020
HHS Takes Major Step to Expand COVID-19-Related Cross-Border Telehealth Access and Immunity
On December 3, 2020, the federal government took a significant step to reduce barriers to healthcare practitioners’ ability to provide COVID-19-related telehealth services across state lines by amending its previous declaration under the Public Readiness and Emergency Preparedness Act (PREP Act).
October 21, 2020
CMS Expands List of Telehealth Services Covered by Medicare
The Centers for Medicare & Medicaid Services (CMS) has expanded the list of telehealth services that Medicare Fee-For-Service will pay for during the COVID-19 public health emergency. According to CMS, the additions are part of the latest push by the agency to accelerate use of telehealth by removing reimbursement barriers.
October 2, 2020
Governor Abbott Announces Agreement With Health Insurers to Continue Payment Parity for Telehealth
Texas’ major health insurers have agreed to continue reimbursing network healthcare providers for telehealth appointments at the same rate which they pay for office visits through the end of 2020.
July 19, 2020
Fast Facts at The Slate: Virginia Mimmack
Virginia Mimmack is the head of the Health Care Practice Group at Jackson Walker, and we talked “all things telemedicine” with her. Use of telemedicine is on the rise, and might stay that way due to our changing world. What can you expect with increased use of telemedicine – and how could it improve your patient experience? Will medicine stay virtual when we go back to normal?Let’s hear!
July 2, 2020
Telemedicine Fraud During COVID-19
As a result of the Trump administration’s expanded Medicare telehealth coverage, providers are now able to offer and be reimbursed for a wider range of services provided via telemedicine.
July 2, 2020
Prepare for Closer HIPAA Scrutiny of Telehealth as States and Practices Cautiously Reopen | Part B News
As states and medical practices slowly reopen and return to normal, the HHS Office for Civil Rights (OCR) will likely end its COVID-19 public health emergency telehealth waivers that were instituted in March.
April 20, 2020
Update on Telemedicine and Telehealth Policies During COVID-19
Jackson Walker Healthcare Chair Virginia Mimmack discusses the updates in policies on the federal and state level allowing telemedicine practices to expand and the effects on doctors, hospitals, insurance coverage, and state and federal regulations.
April 1, 2020
“Telemedicine & COVID-19 – What You Need to Know”
This webinar features Jeff Drummond, Virginia Mimmack, and Dr. Shealynn Buck discussing telemedicine and the relaxation of certain laws to increase access to care during the Coronavirus pandemic.
- Compliance with federal and state laws affecting the practice of telemedicine
- Considerations regarding corporate structures for telemedicine providers and vendors
- Strategies to ensure third-party reimbursement from government and private payors
- Drafting and negotiation of contracts between providers, payors, and technology companies
- Compliance with fraud and abuse laws including those prohibiting self-referral (Stark) and kickbacks
- Advice regarding the changing telemedicine regulatory landscape and its impact on client operations
- Online prescription counsel and guidance
- Counsel regarding the corporate practice of medicine, fee-splitting, and advertising issues which often apply to telemedicine ventures
- Guidance regarding privacy and security requirements, including breach responses, under HIPAA, HITECH, and state laws
- Licensing issues, including state-by-state telemedicine requirements for diagnosis, treatment, and/or prescription
- Guidance in connection with mobile apps and online health programs
- Development and implementation of procedures and protocols to ensure compliance with HIPAA and other patient privacy concerns and regulations
- Advice on cybersecurity and other data storage and maintenance concerns