Article by: Ryan J. King, Esq.
Even before the COVID-19 pandemic, the popularity of telemedicine was exploding. In 2019, Healthcare Finance reported that the telemedicine sector was worth an estimated $38.3 billion in 2018 and that this value was expected to increase to $130.5 billion by 2025. The pandemic kicked this growth into high gear, as access to telemedicine became essential for patients for whom it was unsafe to visit their providers in person.
“Telemedicine” describes a broad range of technologies utilized to provide remote health care services to patients who might not otherwise have ready access to physicians, specialists, urgent care facilities, or hospitals. The terms “e-health” and “telehealth” are commonly used as well—often interchangeably—although there are technically differences between these three sectors.
A key aspect of telemedicine’s appeal is the fact that it offers benefits to both patients and providers. It gives patients more flexibility and more choice while affording providers more opportunities to provide (and bill for) care. But, with these opportunities come challenges, and healthcare providers must address these challenges head-on in order to avoid violating the law.
Understanding the Law on Telemedicine in Pennsylvania
As a starting point, in Pennsylvania, there is currently no law that prohibits the practice of telemedicine (nor do we anticipate any such law being enacted). When the practice of telemedicine was first introduced, all a provider needed to see patients remotely was a license to practice medicine in the Commonwealth.
However, in March 2020, Governor Wolf granted the Department of Health the authority to allow out-of-state health care providers to treat Pennsylvania residents using telemedicine as warranted in response to the COVID-19 pandemic. In response, the Department of Health authorized the following out-of-state providers to provide telemedicine services to patients in Pennsylvania: chiropractors, dentists, medical doctors, registered nurses, optometrists, pharmacists, podiatrists, psychologists, nursing home administrators, occupational therapists, physical therapists, speech-language therapists, social workers, marriage and family therapists, professional counselors, and veterinarians. In order to provide telemedicine services to patients in Pennsylvania, the Department of Health established a requirement for these providers to be licensed and in good standing in their respective states, and to provide their license information to the corresponding professional board in Pennsylvania.
The Pennsylvania legislature has enacted a parity law and adopted the Interstate Medical Licensure Compact, both of which will pave the way for permanent increased access to telemedicine in the Commonwealth. But, while both legislative initiatives have passed, their implementation remains in process.
Legal Challenges Facing Telemedicine Providers in Pennsylvania
One of the most significant legal challenges facing providers seeking to provide telemedicine services to Pennsylvania residents is the limited availability of Medicare coverage. Currently, coverage for most telehealth services is restricted to patients in rural areas and specific settings in hospitals and physicians’ offices. As a result, practitioners must be extremely careful to avoid improperly billing Medicare—which can potentially lead to civil or criminal enforcement action under the False Claims Act and other federal laws.
Other challenges facing telemedicine practitioners in Pennsylvania include:
- Medical malpractice claims (in particular, claims related to misdiagnosis or failure to diagnose due to insufficient examination)
- Privacy and security compliance under the Health Insurance Portability and Accountability Act (HIPAA)
- Licensing, credentialing, and privileging issues
- Online prescribing compliance
- Compliance with the Emergency Medical Treatment and Active Labor Act (EMTALA)
As telemedicine continues to play a larger role in the U.S. health care system, compliance is taking center stage at the state and federal levels. Providers that fail to address their compliance obligations will face significant risks—including the risk of civil or criminal enforcement action.