Telemedicine and Telehealth Law

How do telemedicine and telehealth law affect companies?

Telemedicine and telehealth laws significantly impact companies operating in the healthcare industry, particularly those offering telemedicine services or developing telehealth technology. These laws govern the delivery of healthcare services remotely, using telecommunications technology, and aim to ensure patient safety, protect patient privacy, and maintain the quality of care. Compliance with telemedicine and telehealth laws is essential for companies to mitigate legal risks, maintain regulatory compliance, and facilitate the growth of telemedicine initiatives.

One key aspect of telemedicine and telehealth law is licensure and provider-patient relationships. Companies offering telemedicine services must navigate complex licensing requirements, as healthcare providers are typically required to be licensed in the state where the patient is located. This can pose challenges for telemedicine companies operating across multiple states, as they must ensure compliance with varying state licensing laws and regulations.

Additionally, telemedicine and telehealth laws may address issues such as informed consent, prescribing medications remotely, medical malpractice liability, and telemedicine practice standards. Companies offering telemedicine services must ensure compliance with these legal requirements to minimize legal risks and liability exposure. This may involve developing telemedicine policies and procedures, training healthcare providers on telehealth best practices, and collaborating with legal counsel to navigate evolving telemedicine laws and regulations. Need help regarding telemedicine and telehealth laws? Schedule your consultation today with a top healthcare attorney.

In Florida, which laws and regulations apply to telemedicine and telehealth laws?

Florida Telemedicine Act (Florida Statutes Section 456.47): Enacted in 2019, the Florida Telemedicine Act establishes requirements and standards for the practice of telemedicine in the state. It defines telemedicine as the practice of healthcare delivery, diagnosis, consultation, treatment, and transfer of medical data using interactive audio, video, or data communications. · Florida Medical Practice Act (Florida Statutes Chapter 458): The Florida Medical Practice Act governs the practice of medicine by physicians in the state, including telemedicine practices. It outlines licensure requirements, scope of practice, and standards of care for physicians providing telemedicine services in Florida. · Florida Administrative Code, Rule 64B8-9.0141: The Florida Board of Medicine and the Florida Board of Osteopathic Medicine have adopted rules governing telemedicine practices by physicians and osteopathic physicians, respectively. These rules address issues such as establishing a proper provider-patient relationship, informed consent, record-keeping, and patient confidentiality.

What are common issues regarding telemedicine and telehealth laws that lead to litigation?

Common issues regarding telemedicine and telehealth laws that frequently lead to litigation include:

· Licensure and Provider-Patient Relationship: One common issue is whether healthcare providers offering telemedicine services are properly licensed in the state where the patient is located. Failure to comply with state licensure requirements can lead to allegations of practicing medicine without a license, which may result in disciplinary action, fines, and litigation.

· Standard of Care and Quality of Care: Telemedicine raises questions about the standard of care and the quality of care delivered remotely. Allegations of medical malpractice or negligence may arise if patients perceive that the care provided via telemedicine was substandard or resulted in harm. Disputes over diagnosis, treatment decisions, and follow-up care may lead to litigation.

· Informed Consent and Patient Communication: Ensuring proper informed consent and effective patient communication are critical in telemedicine practice. Issues may arise if patients do not fully understand the limitations, risks, and benefits of telemedicine services or if there are misunderstandings about the provider-patient relationship. Failure to obtain valid informed consent or adequately communicate with patients may result in legal challenges and litigation.

· Privacy and Security: Telemedicine platforms and technologies must comply with privacy and security laws, such as the Health Insurance Portability and Accountability Act (HIPAA), to protect patient health information. Breaches of patient privacy, unauthorized access to medical records, and inadequate data security measures can lead to lawsuits, regulatory penalties, and reputational damage for telemedicine providers.

· Reimbursement and Billing Practices: Disputes over reimbursement and billing practices are common in telemedicine litigation. Allegations of overbilling, improper coding, and fraudulent billing for telemedicine services may trigger investigations by government agencies and private payers, leading to litigation, recoupment actions, and False Claims Act liability.

· Regulatory Compliance: Telemedicine providers must comply with a complex regulatory landscape, including state and federal telehealth laws, licensing requirements, and professional practice standards. Non-compliance with telemedicine regulations may result in legal challenges, enforcement actions, and litigation initiated by regulatory agencies or other parties.

· Technology Issues and Technical Failures: Technical issues, such as connectivity problems, software glitches, and telecommunication failures, can disrupt telemedicine encounters and compromise patient care. Patients may pursue legal action if they experience harm or adverse outcomes due to technology failures during telemedicine consultations.

· Scope of Practice and Interstate Practice: Telemedicine raises questions about the scope of practice for healthcare providers practicing across state lines. Providers must ensure compliance with state laws governing telemedicine practice, including licensure, prescribing authority, and other regulatory requirements. Disputes over interstate telemedicine practice may lead to litigation and regulatory scrutiny.

· Fraud and Abuse: Telemedicine fraud and abuse allegations, such as kickbacks, improper financial relationships, and fraudulent billing practices, can result in litigation and enforcement actions by government agencies, whistleblowers, or private plaintiffs. Companies and individuals accused of telemedicine fraud may face civil and criminal liability, including fines, penalties, and exclusion from federal healthcare programs.

· Telemedicine Contracts and Agreements: Disputes over telemedicine contracts, agreements, and partnerships may lead to litigation between telemedicine providers, technology vendors, healthcare facilities, and other stakeholders. Breach of contract, disputes over intellectual property rights, and disagreements over payment terms are common issues that may result in legal action.

We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path to seek appropriate remedies. To determine whether your unique situation may necessitate litigation, please contact our office to set up your initial consultation.

What steps should businesses take to minimize the risk of litigation over telemedicine and telehealth laws?

To minimize the risk of litigation over telemedicine and telehealth laws, businesses should take several proactive steps:

· Comprehensive Compliance Program: Develop and implement a comprehensive compliance program tailored to telemedicine and telehealth laws and regulations. This program should include policies and procedures that address licensure requirements, scope of practice, informed consent, privacy and security, billing and coding, and other relevant legal obligations.

· Provider Training and Education: Provide thorough training and education to healthcare providers and staff involved in telemedicine services. Ensure they understand their legal and ethical obligations, compliance requirements, and best practices for delivering telehealth care while maintaining regulatory compliance.

· State Licensure Compliance: Ensure that healthcare providers offering telemedicine services are properly licensed and authorized to practice in the states where patients are located. Monitor changes to state licensure requirements and promptly address any compliance issues to minimize the risk of unauthorized practice of medicine claims.

· Telemedicine Technology Security: Implement robust security measures and protocols to protect patient health information transmitted and stored through telemedicine platforms. Adhere to HIPAA requirements for data encryption, access controls, user authentication,

and data breach response procedures to safeguard patient privacy and prevent unauthorized access.

· Informed Consent Protocols: Establish clear protocols for obtaining informed consent from patients before initiating telemedicine encounters. Ensure that patients understand the nature of telehealth services, potential risks and limitations, confidentiality protections, and their rights and responsibilities as telemedicine participants.

· Documentation and Record-Keeping: Maintain accurate and comprehensive documentation of telemedicine encounters, including patient assessments, treatment plans, informed consent forms, and communication logs. Adhere to documentation standards and retention requirements to support the delivery of high-quality care and defend against potential legal claims.

· Telemedicine Reimbursement Compliance: Understand and comply with reimbursement policies and requirements for telemedicine services from private payers, Medicare, Medicaid, and other third-party payers. Ensure accurate billing and coding practices, proper documentation of telehealth services, and adherence to reimbursement parity laws where applicable.

· Legal Review and Risk Assessment: Conduct regular legal reviews and risk assessments of telemedicine practices, contracts, and operations. Identify potential compliance gaps, legal risks, and areas for improvement, and take proactive steps to address them before they escalate into legal disputes or litigation.

Frequently Asked Questions

What are the informed consent requirements for telemedicine consultations?

Informed consent for telemedicine consultations typically involves informing patients about the nature of telehealth services, potential risks and limitations, confidentiality protections, patient rights, and responsibilities. Providers should ensure that patients understand and consent to participating in telemedicine encounters before initiating remote care.

Can healthcare providers prescribe medications through telemedicine?

Yes, healthcare providers may prescribe medications through telemedicine encounters, provided they comply with applicable federal and state prescribing laws, regulations, and practice standards. Some states impose specific requirements or restrictions on prescribing medications via telehealth, such as limitations on controlled substances or initial prescriptions.

Are there telemedicine-specific malpractice insurance policies available?

Yes, many insurance companies offer professional liability insurance policies specifically tailored to telemedicine and telehealth practice. These policies may provide coverage for medical malpractice claims, regulatory violations, legal defense costs, and other liability risks associated with telehealth services.

Have more questions about telemedicine and telehealth law?

Crucially, this overview of telemedicine and telehealth law does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively. Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.