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Iowa Healthcare Law Blog News & Updates on Legal, Policy, & Business Issues Facing the Health Care Industry in Iowa

Telemedicine Proposed Rule’s Disclosures and Functionality of Telemedicine Services

Posted in HIPAA, Iowa Board of Medicine, Telemedicine

The October 23, 2014 post addresses the proposed rule’s requirement for disclosures and functionality of telemedicine services and other provisions of the proposed rule that may be less the responsibility of physicians who use telemedicine and more the responsibilities of entities that purchase, offer and maintain telemedicine equipment and services.

Disclosures and functionality of telemedicine services.

Proposed rule 653-13.11(17)

Summary. The physician using telemedicine must clearly disclose to the patient the types of services to be provided; contact information for the physician; identity, licensure, board-certification, credentials, and qualifications of all health care providers providing the telemedicine service; limitations on drugs and services that can be provided via telemedicine; fees and cost sharing responsibilities; financial interests; appropriate uses and limitations of the technologies; uses and response times for emails, electronic messages, and other communications transmitted via telemedicine; to whom patient information may be disclosed and for what purposes; rights of patients with respect to patient information; and information collected and passive tracking mechanisms utilized.

Considerations. The disclosure responsibilities set forth in this proposed provision are many. The language of this provision is taken by the Iowa Board of Medicine (“IBM”) directly from the Federation of State Medical Board’s recently adopted “Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine.” The IBM, however, goes one step further by proposing this policy statement as a disciplinary requirement for physicians using telemedicine.

The disclosure requirements may be appropriate for and within the capabilities of an entity offering telemedicine services. To impose this obligation upon the individual physician using telemedicine goes too far. This model policy language might more appropriately be part of a similarly adopted model policy of the IBM and/or others to guide telemedicine delivery in Iowa. This disclosure provision as currently drafted, however, is not a medical standard nor is it an appropriate matter for physician discipline.

Requirements (standards) for physicians – facility or physician responsibility?

Proposed rule 653-13.11(13) – Emergency Services

Proposed rule 653-13.11(15) – Privacy and Security

Proposed rule 653-13.11(18) – Patient Access and Feedback

Proposed rule 653-13.11(16) – Technology and equipment

Summary. The physician using telemedicine must: (1) establish written protocol for referral of a patient to an acute care facility or emergency department when necessary for the safety of the patient in case of an emergency; (2) ensure that all telemedicine encounters comply with HIPAA’s privacy and security measures and establish written protocols addressing matters such as health care personnel authorized to process messages, types of transactions to be transmitted electronically, quality oversight mechanisms, and archival and retrieval, which protocol must be evaluated periodically; (3) ensure the patient has access to mechanisms for accessing, supplementing, or amending patient-provided personal health information, giving feedback on the quality of the telemedicine services provided, and registering complaints, including how to file complaints with the IBM; and (4) ensure that technology and equipment used for telemedicine service delivery comply with relevant safety laws and technical safety codes, are of sufficient quality, size, resolution, and clarity needed to provide the medical services, and are compliant with HIPAA.

Considerations. Telemedicine service delivery generally involves physicians, hospitals and others, each of whom have roles and responsibilities for safe and effective telemedicine care. Many of the requirements imposed by these specific provisions  as “standards of practice” for physicians more appropriately are expectations for hospitals or other entities that purchase, maintain, and offer telemedicine services. It seems neither reasonable nor appropriate to place such regulatory expectations, subject to discipline for non-compliance, upon the individual telemedicine physician.

To illustrate, AMA policy H-480.946 on telemedicine says that “physicians, health professionals, and entities that deliver telemedicine services” must establish protocols for referrals and emergency services. The Federation of State Medical Boards addresses these issues within its “Model Policies for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine,” (adopted in April 2014). The FSMB policy on referrals for emergency services says that an emergency plan is required; it does not say the physician is singularly responsible for its development. The physician, however, must be prepared to implement that plan if a referral to an acute care facility or ER is necessary. By way of contrast, the IBM’s proposed rule on emergency services requires the physician who uses telemedicine to establish written protocol for referral of the patient to an acute care facility or emergency department.

Language in a disciplinary rule is important. These specific provisions call for further examination and drafting consideration before adoption. As noted above, these matters of telemedicine delivery of care might be better addressed as model policies or principles for telemedicine delivery in our State particularly in the absence of specific legislative directions from the Iowa General Assembly on telemedicine regulation. The IBM should not attempt to regulate all matters of telemedicine delivery through imposed disciplinary standards on physicians.

The October 24, 2014 posting (last in this series) addresses practical implications for physicians in meeting several of the proposed rule’s requirements  as well as the proposed rule’s specific requirements re: financial interests, links to internet sites, prohibited relationships with preferred pharmacies, and  prohibited internet transactions for prescribing controlled substances.

See our page dedicated to Telemedicine for all related articles, including our most current post.