From: Thompson Reuters/News & Insights
By Caitlin Tremblay
The healthcare industry’s rising reliance on telemedicine, which uses telecommunications to provide health care at a distance, has prompted some healthcare lawyers to begin focusing on helping clients navigate the sector’s complicated net of privacy, liability and licensing challenges.
Such services, which can range from the electronic transmission of x-rays to consulting with a psychiatrist via Skype, are increasingly popular, according to GlobalData, a business research group. A study by the organization projects that telemedicine will grow 14 percent to $32.6 billion by 2018.
The expansion has caught the attention of some healthcare attorneys, who are beginning to develop telemedicine subspecialties in areas such as Health Insurance Portability and Accountability Act (HIPPA), in setting up remote healthcare practices and in handling liability issues unique to telemedicine.
The practice area is still in its infancy among large firms with healthcare groups, according to the Robert J. Waters Center for Telehealth and e-Health Law, a telemedicine legal research center, but a handful of law firms such as Nixon Peabody, Fulbright & Jaworksi and Seyfarth Shaw said they have partners who have developed expertise in the area.
Because both state and federal law applies to health information, compliance in the telemedicine sector can be tricky, said Linn Freedman, a partner at Nixon Peabody and leader of the firm’s privacy and data protection group.
In some cases, the problem is that the state and federal laws conflict. In others, it’s that laws vary from state to state; or alternatively, it’s that some state’s laws are more restrictive than others. All of these conditions pose licensing, privacy and liability issues for providers practicing in more than one state, Freedman said.
Mastering such laws is especially important when it comes to HIPPA’s privacy and security issues as they apply to telemedicine, because state laws often are more restrictive than federal laws, and it’s the more stringent law that will apply, said Freedman.
Nixon Peabody has conducted a survey and compiled a list of all relevant state rules and regulations. The firm’s 40-lawyer health group has also been collaborating with lawyers in other states to determine what kind of license a healthcare professional might need to practice across state lines and to comply with the relevant privacy rules.
As for potential liability, the firm advises clients to ensure that their malpractice insurance covers telemedicine, said Lindsay Maleson, another Nixon partner, and advises physicians and healthcare providers to make sure they have cyber-security insurance because it might not be included in malpractice coverage.
CLARIFYING TELE-RELATIONSHIPS
Rather than focusing on interstate rules as they apply to telehealth, the Robert J. Waters Center for Telehealth and e-Health Law is working on clarifying how states define physician-patient relationships to make it easier for a doctor already practicing telemedicine to comply with existing law.
Currently, only 13 states allow first encounters with physicians to be a telemedicine meeting, but even in those states the language is sometimes confusing, said Greg Billings, executive director of the Washington-based center. The organization is not advocating for more states to pass telemedicine laws, said Billings. Instead, it is working with state legislatures and state medical boards to ensure that laws regarding physician-patient relationships are clear.
Such work is important because it can help clients avoid liability, said Sheryl Dacso, a partner with Seyfarth Shaw who is working with clients in the telemedicine field. Because the field is still developing, Dacso said, she advises her clients to incorporate telemedicine gradually and use it as a tool to improve outreach to patients.
Dacso also said she advises her clients to ensure that if they do interact with patients using telemedicine, there are secure networks to protect the information exchange.
“The more you fit the telemedicine encounter into a traditional format the less liability there is,” said Dacso, one of a 30-member healthcare team. “You’re merely using the telemedicine tech to enhance your patient’s access to you or your staff.”
“HIPPA HEAVEN”
At Fulbright & Jaworski, which has a 79-lawyer healthcare practice, interest in telemedicine has increased so much recently that partner Mark Kadzielski last year began leading telemedicine seminars for firm lawyers, physicians and other healthcare professionals.
On March, Kadzielski, who is based in Los Angeles, took his presentation to the California Society for Healthcare Attorneys’ annual meeting and spring seminar in Newport Beach. “Telemedicine Amidst Health Reform: Avoiding Legal Pitfalls” addressed Medicare rules on telemedicine credentialling and provided practical tips for implementing telemedicine practices while protecting patient privacy.
Kadzielski, who refers to the complications surrounding telemedicine as “HIPPA heaven,” said the most common question posed to his team is how to reconcile the differences between HIPAA and state privacy laws.
He said he stresses to clients the importance of testing computer systems and network security and doing audits because the cost of dealing with a government investigation is something everyone should be aware of. It costs hours of time, not just money.
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