How to avoid telemedicine’s legal gotchas

Many employers are considering offering telemedicine as a convenient and economical way of providing physician and related health care services to their employees and their dependents.

Generally, telemedicine services are provided through the internet, computer-based video systems or via telephone. Using instruments plugged into their computers, individuals can measure and transmit medical information. Telemedicine consultations typically function as physician office visits.

Telemedicine sessions may provide basic diagnostic and treatment services or include a broader range of services, such as monitoring patients with ongoing conditions or assessing their need for specialist referrals. Alternatively, the telemedicine services may provide a referral source to evaluate the person’s condition and refer him to appropriate comprehensive care.

Because a physician consultation through telemedicine is less expensive than a regular office visit and the convenience of telemedicine is appealing to employees who travel frequently or live in remote areas, telemedicine’s prevalence is growing.

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Unfortunately, as with many benefit enhancements, adding telemedicine to your menu of benefit offerings is not a simple endeavor. Below are some of the considerations employers should consider in determining whether to offer telemedicine services.

Does the scope of your telemedicine services cause the program to be a group health plan?

If so, then the program will be subject to the myriad of legal requirements applicable to group health plans, such as the Patient Protection and Affordable Care Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, etc. Offering the telemedicine program on a stand-alone basis may not be feasible.

Is it feasible to offer telemedicine services through your existing group health plan?

This will depend on the capabilities of your insurer or third party administrator. If your vendors do not offer telemedicine services, then the question becomes whether your plan design can accommodate offering telemedicine services through another vendor.

Are there any legal restrictions that impact your ability to offer telemedicine services?

State law may restrict the provision of telemedicine services by requiring that certain services only be provided with an in-person visit or by prohibiting state-licensed providers from providing telemedicine services to individuals in another state.

In addition, insured plans may include telemedicine as a mandated benefit and could restrict plans from requiring covered persons to access physician services through in-person visits.

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For example, the Texas insurance code prohibits certain benefit plans from excluding coverage for services provided through telemedicine instead of through face-to-face interactions. It defines telemedicine as “the use of interactive audio, video, or other electronic media to deliver health care” and excludes services performed using a telephone or facsimile machine. It does not limit the definition to services delivered in rural areas or under other specific circumstances.

These varying state law requirements may limit the telemedicine services you provide employees in certain locations and complicate the overall design of a telemedicine program.

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