Succeeding in Your Business: Thinking about a telehealth practice? Here's the dope

By Cliff Ennico

“I am a young (mid-30s) physician who has just completed his residency and recently bought a suburban general medicine (internist) practice.

“Your column last week about building a successful medical practice struck a chord with me, and I hope you won’t mind a related question.

“My practice is in a rural area, and, while I have enough patients to keep my head above water, there isn’t a lot of room for growth.

“I’ve been reading a lot lately about telehealth — offering medical services online — and am thinking about setting up a telehealth service for patients around the country with a particular condition I’m especially well-qualified to treat.

“Can you put something in a future column about this?”

Absolutely. Before the COVID-19 pandemic, I used to speak around the country to organizations of doctors, lawyers and other professionals and my message to them was always the same: A professional practice (while heavily regulated and subject to strict ethical rules) is, to some extent, a small business like any other. In trying to succeed and grow a professional practice, you will face many of the same challenges as any other entrepreneur. Looking for creative ways to reach new patients is certainly a way to grow, especially in an environment where “organic” patient growth is extremely limited.

When it comes to the law, telehealth — offering medical services remotely via Zoom meeting or another online platform — shares some similarities with marijuana (cannabis) regulation: There is no comprehensive federal law regulating telehealth. Instead, there is a patchwork of state regulations, and, as with cannabis regulations, they are all over the place.

Complicating the picture is that many states (including my home state of Connecticut) have enacted “temporary” telehealth laws that will expire (or “sunset”) as soon as the COVID-19 emergency is over. When seeking guidance online, be sure to check the “last updated” information on an article or blog. Some websites that purport to summarize COVID-19-related laws around the country have not been updated since 2019 or early 2020 and so cannot be relied upon as competent legal advice.

Here are some of the questions you will need to ask before setting up your telehealth website:

What Type of Telehealth Practice is Permitted? Most states define “telehealth” or “telemedicine”” as the use of synchronous (live) two-way electronic audiovisual communications between a patient and a doctor for the purposes of receiving healthcare treatment. There are additional communications that qualify as telemedicine, including:

• Store-and-forward transmissions, which is the electronic transfer of a patient’s medical information (usually performed between doctors); and

• Remote patient monitoring, which is the collection of information from a patient via machines that is then transferred via a synchronous (live) or asynchronous (recorded) data stream to their doctor. The data can then be examined as needed.

You need to look at the rules state by state to make sure the type of telehealth service you wish to provide is permitted. Be sure your website lists states where you cannot legally perform these services.

Where Do I Need to Be Licensed? In virtually every state, providing healthcare services must be performed only by state-licensed physicians. Most states legalizing telehealth have made an exception for out-of-state physicians who have a current, unencumbered license in their home state and (in some states, including Florida) register with the state as an out-of-state “telehealth only” provider so in-state courts have jurisdiction over malpractice lawsuits.

What Types of Medical Practice Can Be Performed via Telehealth? In most states, only some specialties are allowed to practice virtually. For example, in New York, the list is limited to: “physicians, physician assistants, dentists, nurse practitioners, registered professional nurses when such nurse is receiving patient-specific health information or medical data at a distant site by means of remote patient monitoring, podiatrists, optometrists, psychologists, social workers, speech language pathologists, audiologists, midwives, physical therapists and occupational therapists.”

Can Telehealth Services Be Reimbursed by Medicare or Medicaid? Medicare Part B (medical insurance) covers some telehealth services. While all 50 states and the District of Columbia provide reimbursement for some form of synchronous (live) video in the Medicaid fee-for-service model, as of September 2019, only 21 had some form of reimbursement for remote patient monitoring in their Medicaid programs, and only 11 state Medicaid programs included reimbursement for store-and-forward services.

Must I Obtain an Informed Consent Form From a Patient Before Performing Telehealth Services? Most states with telehealth laws require the patient sign an online informed consent form before services begin; this will need to be included as part of your website’s online registration process.

The bottom line is that you will need to retain an attorney who is familiar with telehealth matters. Search online for “(your state) telehealth lawyer attorney,” or search online for “(your state) telehealth law regulation,” and see if any local law firms have posted articles about your state’s law. Spoiler alert: These are likely to be large, Wall Street-type law firms, so be prepared to pay a pretty penny for the advice you will need.
Then, download the American Medical Association’s “Telehealth Implementation Playbook” for practical guidance on setting up your telehealth website. Good luck!

Cliff Ennico (crennico@gmail.com) is a syndicated columnist, author and former host of the PBS television series “Money Hunt.”

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