by Kyle McAllister & Ashley Ray
There has been a recent uptick in interest regarding telemedicine among both patients and healthcare providers. In short, telemedicine is the practice of health care delivery through audio, video, or data communications. Originally created to treat underserved patients in remote areas, COVID-19 has accelerated the expansion of telemedicine as a tool for convenient and safely distanced medical care for all. More patients are now apprehensive about leaving their homes for routine checkups and what they consider to be minor ailments. This creates a shortfall in both patient care and healthcare provider revenue. Telemedicine can help bridge that gap by providing patients with an option to receive care remotely, avoiding the danger of being exposed to numerous other patients while going to and from the healthcare provider’s office and while waiting in the healthcare provider’s waiting room.
While there are numerous benefits of telemedicine, there are several legal issues that need to be understood and addressed by healthcare providers prior to engaging in telemedicine practice.
Business Entity Organization
The first thing any healthcare provider should do before opening a new practice is organize the practice as a professional entity. In Oklahoma, the professional entity types available to healthcare providers are a professional corporation or professional limited liability company. Both entity types serve as liability shields from claims that may be brought against healthcare providers. This means that if the healthcare provider is sued, the professional entity helps shield the doctor’s personal assets (car, home, etc.) from being taken in a lawsuit. If you are a healthcare provider who does not currently operate under a professional entity, we strongly recommend you contact an attorney to assist you with forming a professional entity.
If you are a healthcare provider who already practices under a professional entity, the question then becomes whether you may provide telemedicine services under your existing professional entity or whether you need to organize a new professional entity specifically for telemedicine services. Typically, healthcare providers who operate under a professional entity that they wholly own and operate or that they own and operate with close colleagues can add telemedicine services to their current practice with relative ease. However, for healthcare providers who currently practice as an employee or as a minority owner of a larger healthcare practice, a new professional entity will likely be required before providing telemedicine services.
Contractual Considerations
Nearly all healthcare professionals are bound by the terms of an employment agreement, an independent contractor agreement or an organization’s governing documents. In many instances, these documents include terms that prevent an employee, independent contractor or co-owner of an existing practice from starting a new practice in the same area of medicine. These restrictions are typically in the form of non-compete and non-solicitation provisions. If you practice medicine as an employee, independent contractor, or co-owner of an existing entity, we strongly recommend you seek the advice of an attorney experienced in reviewing these types of contractual restrictions. Our attorneys are experienced in this area and would be glad to review your documents and help advise you regarding the most judicious next steps.
Reimbursement
In addition to the general business considerations discussed above, healthcare providers should also be aware of numerous telemedicine-specific legal issues. One of the biggest issues is reimbursement. Telemedicine reimbursement varies based on the state, practice area, services provided and the third-party payer. Fortunately for healthcare providers, Oklahoma law requires coverage of telemedicine services. Additionally, Oklahoma is one of 19 states that does not specify the type of healthcare provider allowed to practice telemedicine, which offers a great deal of flexibility to healthcare providers. The Oklahoma Health Care Authority also provides certain requirements for reimbursement. These requirements are publicly available on the Oklahoma Health Care Authority’s website.
Out-of-State Licensure
Generally, most states, including Oklahoma, require physicians to be licensed to practice medicine in the state where each of their patients is physically located at the time the telemedicine services are provided. One exciting opportunity for entrepreneurially-minded healthcare providers is the ability to provide healthcare services to patients that live outside of Oklahoma. The good news for those providers is that on November 1, 2019 Oklahoma joined 31 other states and the District of Columbia in the Interstate Medical Licensure Compact. (IMLC). The IMLC provides healthcare providers an expediated pathway to licensure for healthcare providers who wish to practice in multiple states. The details of IMLC licensing for Oklahoma physicians is still developing, and we recommend you consult an attorney for the most up-to-date details.
Additional Requirements and Considerations
The amount of technical training and equipment needed to practice telemedicine depends on the extensiveness of the digital platform you plan to use to practice telemedicine. For instance, a more extensive platform used between primary physicians and consulting specialists requires intensive training and the purchase of a telemedicine cart and mobile health devices. Other platforms are less extensive and requires less equipment and technical training. Additionally, the Oklahoma Board of Medical Licensure and Supervision (OMB) has promulgated rules specific to telemedicine and delineates certain equipment requirements. The Centers for Medicare and Medicaid Services also mandates required elements for a service to be considered acceptable. In addition to meeting the above requirements, a provider of telemedicine services must ensure all services are HIPAA compliant.
Conclusion
While telemedicine provides exciting new opportunities for healthcare providers, it is important to start a telemedicine practice the right way to ensure you do not fall victim to common mistakes. Our attorneys have experience helping healthcare providers navigate the numerous issues involved in starting a new telemedicine-focused practice or expanding an existing practice into the telemedicine field. If you are interested in starting a telemedicine practice, we would love to help you take advantage of this expanding area of the medical field.
