Telemedicine is a rapidly growing method of practicing medicine by way of electronic communication. It is only logical that advancements in both technology and communication would alter the age-old practice of medicine. Engaging in this practice of remote healthcare allows providers to reach more patients and grow their businesses by providing health care services, such as primary and specialty care and remote patient monitoring, via videoconference rather than requiring all patients to travel to an office or hospital. Further, health care facilities may be able to retain patients and thereby retain revenue by providing patients with access to specialists through telemedicine rather than transferring or referring them elsewhere. Of note to pharmacies is the ability for the telemedicine patient encounter to generate prescriptions.
However, in addition to the many opportunities telemedicine affords, there are a number of regulatory risks. Virtual healthcare providers and the pharmacies to whom they transmit prescriptions, must comply with a variety of federal and state laws and regulations. Federal laws, including the Anti-Kickback Statute and Stark law, impact the structure of any business arrangement, including those that provide for telemedicine. However, the most noteworthy weapon currently used by the Federal government to prosecute and penalize arrangements involving telemedicine is the False Claims Act. Claims for Federal reimbursement that do not meet all necessary requirements, which range from the inclusion of appropriate telemedicine modifiers to ensuring that the telemedicine was conducted in conformity with the Centers for Medicare and Medicaid Services (CMS) regulations, may result in a violation of the False Claims Act. Additionally, non-encrypted electronic communications could expose providers to violations of HIPAA and HITECH.
Further, providers engaging in telemedicine must ensure their compliance with state law, such as professional board regulations, which enumerate requirements for the practice of medicine. Compliance with these regulations may have direct implications on healthcare services provided as a result of the virtual patient visit, such as the filling of a prescription by a pharmacy provider.
Frier Levitt has developed and reviewed an array of diverse business models that arrange for the provision of telemedicine. Each arrangement presents its own challenges and must be structured to ensure compliance with the various laws and regulations discussed above. If your practice is considering engaging in the practice of telemedicine, Frier Levitt can appropriately and carefully vet your proposed arrangement. Contact us today to speak to an attorney.
