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november 2017

 

An Overview of the Current and Possible Future Telehealth Laws in California

 

In our increasingly digital world, advances in technology and increased acceptance of digital interactions in health care appear likely to bring telehealth to the fore. Telehealth is defined as the provision of health services and information through telecommunication technology. This article discusses some of the telehealth laws applicable to California physicians, as well as how proposed changes to these laws could lead to a dramatic increase in the use of telehealth services in the United States.

 

Current Status of Telehealth Law

 

With the passage of the 1996 Telemedicine Act, California became the first state to regulate telehealth. Since that time, bills have been introduced to the California Codes to amend or add to the growing number of laws on telehealth. These include the Telehealth Advancement Act of 2011 and 2012’s Assembly Bill 1733 which in part prevents health care plans from requiring in-person visits before the delivery of telehealth services.

 

Medicare also has various regulations concerning telehealth and will cover certain services, like consultations under Medicare Part B. Additional payments for telehealth are made to rural physicians as long as the physician is located at a doctor’s office, hospital, critical access hospital, rural health clinic, federally qualified health center, skilled nursing facility or a community mental health center. Additions, changes or deletions to included services or requirements are made on an annual basis in the physician fee schedule. Further, Medicare typically will only reimburse telehealth services provided to patients who are physically located in certain qualified counties or specifically designated rural areas.1

 

Despite increased acceptance of the practice, both California and federal law continue to impose significant restrictions on telehealth services. Medicare, for example, generally will only pay for synchronous interactions or real-time interactions between a patient and a health care provider as opposed to recorded messages. Moreover, certain basic and common forms of electronic communication—including text messaging and email—are generally not reimbursable telehealth services.

 

Additionally, there are a variety of state and federal restrictions on the provision of telehealth services to out-of-state patients. For example, while California allows for out-of-state “consultations,” anything more done by physicians without a California license generally is prohibited.2 Other states have similar laws preventing out-of-state licensed physicians from providing services (including telehealth services) to patients in their states.

 

Possible Future Changes to Telehealth Laws

 

As states choose to adopt exceptions to licensing requirements and independent bodies advocate for the broadening of Medicare laws, the door for a nationwide telehealth system may swing open.

 

One interstate association, the Federation of State Medical Boards, founded the Interstate Medical Licensure Compact (IMLC) program, an agreement between states that would allow licensed physicians to practice across state lines if they meet certain eligibility criteria. This type of national program could quickly prompt all states to adopt interstate licensing plans that would allow for the broader use of telehealth. The IMLC program went live this past April and 22 states currently participate. Although California has not yet joined as a member, increased reliance on telehealth across the state could change that.

 

Additionally, changes to Medicare regarding telehealth could ease the way to full adoption of telehealth services by states. The geographic restrictions in Medicare referenced above could soon vanish. On May 19, Congressman Mike Thompson of California introduced the Medicare Telehealth Parity Act of 2017 which, among other things, phases out geographic restrictions on the locations patients may receive telehealth services.3 If the Telehealth Parity Act becomes law, it could lead the way for broader adoption of telehealth services across the country.

 

Conclusion

 

As the legal burdens on physicians providing telehealth services are reduced, telehealth will become an increasingly important tool in providing health care services. For more information and resources on telehealth, family physicians can visit the American Academy of Family Physician robust Telehealth directory.

 

As always, this article does not reflect a complete list of legal issues that may arise, nor does it constitute legal advice. Physicians should retain a lawyer who specializes in health care law to help navigate the laws and regulations regarding telehealth, allowing the physicians to focus on providing quality medical care.

 

 

About the Author

Scott Kessenick practices in all areas of Kessenick Gamma & Free, LLP specialization, a San Francisco firm providing legal representation to physicians, physician groups and other health care professionals. He may be reached at skessenick@kgf-lawfirm.com.

 

 

Disclaimer

The articles provided in Practice Management News are general. They do not constitute legal, practice management or coding advice in any particular factual situation or create at attorney-client relationship. Consult your attorney or other professional for advice in your particular situation.

 

1. See 42 U.S.C. § 1395m(m)(4)(C)(i).
2. See Cal. Bus. & Prof. Code § 2060.
3. H.R. 2550 § 2(a)(1)(B), (b)(1)(A), (c)(1)(B).