Robert Graboyes

Robert Graboyes

By Robert Graboyes

Graboyes is a senior research fellow with the Mercatus Center at George Mason University, where he focuses on technological innovation in health care. He is the author of “Fortress and Frontier in American Health Care” and has taught health economics at five universities. He wrote this for InsideSources.com.

Telemedicine is a potential game-changer in health care. It offers patients immediate care wherever they are, at any minute of the day or night.

For this technology to realize its potential, though, lawmakers and regulators have to rethink and reconstruct the legal environment in which telemed resides.

Traditional concepts of geographically limited professional licensure, regulation and liability are ill-suited to a world in which a Virginia patient, fishing for the morning in Bahamian waters, seeks an impromptu examination through an iPad from a New York doctor working for a California company, who then prescribes medication through a Florida pharmacy near the fisherman’s hotel.

Recent legislative actions in Virginia and Arizona offer glimpses into how laws might evolve to accommodate telemedicine. Before delving into these legal issues, here’s a brief introduction to telemedicine — the delivery of health care where the provider is not in physical proximity to the patient:

Telemedicine encompasses physical examinations, psychiatry, optical exams, dentistry, and prescription-writing. With synchronous telemedicine, the patient and provider talk in real-time via cellphone, tablet or laptop — often in a Skype-like video conversation. Increasingly, kits are available that allow the patient to plug auxiliary devices — stethoscopes, blood pressure cuffs, thermometers — into the computer to offer the doctor direct readings. With asynchronous (“store and forward”) telemedicine, patients download information to a provider’s website, and the provider reviews the information, responding later.

The biggest legal and regulatory obstacle to telemedicine is our state-by-state system of professional licensure and oversight.

At my home in Virginia, I once received care from a New York physician employed by a California telemed company. For this encounter to occur, however, the New York doctor had to have a Virginia medical license in addition to her New York license. Obtaining and maintaining multiple state licenses is expensive and time-consuming, stifles the spread of telemed, and increases the costs.

Recent developments in Arizona and in Virginia suggest how this environment might loosen up. Arizona just became the first state to recognize out-of-state professional licenses (medical and non-medical) for use in Arizona. Governor Doug Ducey, who signed the licensure bill, said, “You don’t lose your skills simply because you pack up a U-Haul truck and make the decision to move to Arizona.” The Arizona law doesn’t permit out-of-state doctors to treat Arizona patients via telemedicine, however.

In 2019, though, the Virginia legislature came close to that step. The obstacle to New York doctors treating Virginia patients lies in the fact that Virginia law deems a telemed encounter to occur where the patient sits — not where the doctor sits. Virginia considered changing that presumption, treating the encounter as occurring where the doctor sits.

Under this scenario, the doctor would likely be subject to New York’s regulations and liability laws rather than Virginia’s. Legislators were uncertain, for example, of where and how the patient might sue in the event of a case of malpractice. They sent the provision back for further study and future consideration.

But this situation isn’t totally unique. Essentially, the Virginia patient would be in a similar situation to one who hopped a train and traveled to New York City for care— not an uncommon occurrence. If a Virginian suffers a medical injury at Columbia Presbyterian Hospital, litigation presumably occurs in New York courts, not Virginia courts. In fairness, it’s reasonable for legislators to give such jurisdictional issues serious consideration.

Finally, two caveats are worth noting:

First, some states, wishing to encourage telemedicine, are passing or considering legislation that would require (rather than allow) insurers to reimburse doctors for telemedical visits. There is a big difference between “allow” and “compel,” and states would be wise to consider the former over the latter. Some providers, insurers and others have legitimate qualms about telemedicine, and it is perhaps better for telemedicine to earn their trust rather than being foisted upon them.

Second, some legislative initiatives would require insurers to pay telemedicine doctors the same dollar amounts that they pay doctors for office visits. Such parity requirements may discourage, rather than encourage telemedicine by eliminating one of telemed’s most important features — the ability to provide similar care at a lower cost.

Watching this unfold will be interesting.

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