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What’s Preventing the Telehealth Market from Booming? One Lawyer Weighs In (Part 2)

June 21, 2016
by Rajiv Leventhal
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Last week, in Part one of a two-part interview, Nathaniel Lacktman, head of law firm Foley & Lardner’s telemedicine and virtual care practice, offered insights on how variances in state laws and insurance barriers are affecting the telehealth industry. Lacktman, a 12-year veteran at the practice, had strong opinions when it came to health plans in many states not covering telehealth services. He said, “I find this disappointing and frustrating, as do many healthcare providers. We see a much more robust and meaningful utilization and enjoyment of telehealth services in those states that have passed telehealth insurance coverage laws.”

In Part two of the interview with Healthcare Informatics, Lacktman continues to talk about the challenges that the telemedicine sector faces, providers’ thoughts on virtual care services, and how the future might play out. Below are excerpts of that discussion.

What other challenges do you see in the industry that might be preventing telemedicine to take that next “leap?”

Like anything new, it takes a while for buzz to build and people to get comfortable. Historically, telemedicine has been focused in the academic medical center and university environment, if only because that’s traditionally the domain of pilot programs and research studies to prove clinical efficacy. But the clinical efficacy and safety has been established. Now, we have been seeing studies trying to prove telemedicine’s ROI. People are looking to scalability and sustainability: how to structure service offerings with operational homogeneity so there aren’t variances on a state-by-state basis. And I think there’s a better understanding of why providers are using telemedicine, how they plan to use it, and a desire to build a model that does not rely solely on cost savings or shoestring grant-funded budgets. Rather, the service itself should generate revenue and improve quality. That’s the next level of sophistication in telehealth business arrangements. In our practice, we aren’t just papering the legal documents, but we frequently advise clients on the business models and structures that will offer these benefits. Some people appreciate the flashy and exciting technology, but have no idea about how to turn it into a viable service line.

Are doctors more on board with providing these services compared to years past?

Yes, they’re more on board and it’s continuing to grow. The AMA [American Medical Association] just approved their ethical guidelines on telemedicine use after three years of back-and-forth. At this point, it’s pretty irrefutable. Once you get into the thick of it, you will see people doing amazing things with telehealth and doing it with confidence. As with anything, you need education and exposure though before doing it with comfort.

Given the recent Teladoc situation, what are your thoughts on a patient-provider visit having to be established before a telemedicine service takes place?

You’re touching on an important and sensitive issue in the industry right now. Fundamentally, I think part of what telehealth startups themselves represent is a disruptive change to the way healthcare is provided, as well as who can provide it. Historically, hospitals and doctors have considered themselves the gatekeepers for who can deliver healthcare and how it should be delivered. Some people see the changes associated with telehealth as frightening or a threat. Advocates for telehealth, starting about 10 to 15 years ago, would push boards of medicine to give them guidance on telehealth practice standards. They wanted the board to issue a rule stating they are allowed to practice via telemedicine without an in-person exam. That’s a permissive rule; some states prefer to pass only prohibitive rules, and only when necessary. The silent or gray areas, to some people, represent a risk they are not comfortable with. So we now have states with telemedicine practice standards.  These standards are often artificial requirements boards have imposed on doctors only for telehealth services. This includes things such as informed consent for telehealth services. Informed consent for telehealth is not necessarily a bad thing, but a doctor is not required to get one from a patient every time he or she walks into the in-person clinic. Some of these rules have resulted in more burdens and restrictions on innovation. In fact, some states are revisiting those rules and electing to remove the requirements.

And then you also have the overarching notion of standard of care. The question is: is the examination you are conducting sufficient to give the doctor all the information he or she needs to assess the patient’s clinical condition, and render an accurate diagnosis and treatment? Sometimes a doctor can do that via a real-time audio/video interactive [feed], and sometimes the doctor can’t. A lot of this defers to the independent medical decision making of the practitioner, and if he or she is delivering substandard of care, there will be disciplinary action by the medical board. And that’s how it should be.

When put all together, what will it take for telemedicine programs to integrate themselves more fully into health systems?