Readers Write: AMA Adopts New Recommendations on Telemedicine, Signaling Further Comfort with Telehealth

AMA Adopts New Recommendations on Telemedicine, Signaling Further Comfort with Telehealth
By Alexis Gilroy, JD

Earlier this month, the American Medical Association (“AMA”) approved recommendations regarding the provision of medical services using telecommunications technologies (commonly known as “telemedicine”). AMA’s report, on the heels of a policy adopted in April by the Federation of State Medical Boards, indicates the growth of telemedicine, an increased comfort-level with telemedicine, and a desire to align legal and regulatory frameworks between medical services provided “in-person” and those provided using telemedicine.

In particular, AMA’s report provides an overview of key topics specific to telemedicine, including reimbursement, known practice guidelines, and telemedicine use cases, and it establishes a number of new AMA policies and recommendations regarding telemedicine services. The report is a significant departure from some of the AMA’s previous policies regarding the use of telemedicine, including a 1994 AMA opinion prohibiting physicians from providing clinical services via telecommunications (to which the report notes “may no longer be consistent with the best ethical analysis”).

Most notably, perhaps, the AMA advocates equating the standard of care for services provided via telemedicine with the standard of care for in-person services. While this may just seem like legal jargon to some, it has potential real positive impact on the digital health industry. This move signals an acknowledgement of telemedicine as an accepted delivery model akin to “in-person” delivery models. After all we are talking about medical services in either context with the difference merely being the venue for accomplishing delivery.

Unfortunately, to date, regulators do not always have similar views between medical services provided “in-person” versus telemedicine, as adopted regulations in many states indicate a strong deference to traditional “in-person” services and in some cases a flat prohibition on services provided through telemedicine. For example, Texas and Alabama currently require an in-person exam prior to any services provided via telemedicine in a patient’s home regardless of the patient’s illness or situation, causing significant roadblocks for telehealth providers in these states. This is especially frustrating for some home-based patients who could significantly benefit from engagement with a primary care or specialty physician using telemedicine.

With the AMA’s support through the new policy, similar to the Federation’s telemedicine policy, we may see state medical boards and other regulators rethink existing and proposed regulations specific to telehealth that placed an across the board barrier on the delivery of some medical services merely because the provider chose to utilize telecommunications rather than considering whether telemedicine could be used safely and perhaps more effectively for some patients and illnesses.

The AMA’s adopted recommendations about the delivery of health care services via telemedicine include the following items:

• Establishing a valid patient-physician relationship. Telemedicine services should be based on a valid patient-physician relationship established prior to providing telemedicine services, which can be established through: (a) a face-to-face examination, where a face-to-face encounter would otherwise be required for providing the same service in-person; or (b) a consultation with another physician who has an ongoing patient-physician relationship with the patient and agrees to supervise the patient’s care; or (c) meeting standards of establishing a patient-physician relationship included as part of evidence-based clinical practice guidelines on telemedicine developed by major medical specialty societies, such as those of radiology and pathology. Although this recommendation does not explicitly describe what constitutes a “face-to-face examination,” the full report provides that “[t]he face-to-face encounter could occur in person or virtually through real-time audio and video technology.”
• State licensure. Physicians and other health practitioners delivering telemedicine services must abide by state licensure and medical practice laws and requirements in the state where the patient receives services.
• Choice of provider and information on provider credentials. Patients seeking care delivered via telemedicine must be offered a choice of provider. Further, patients receiving telemedicine services must have access to the licensure and board-certification qualifications of the health care practitioners providing care in advance of their visit.
• Practice guidelines. The delivery of telemedicine services must follow evidence-based practice guidelines, to the degree they are available, to ensure patient safety, quality of care, and positive health outcomes.
• Patient history and documentation. The patient’s medical history must be collected as part of the provision of any telemedicine service, the services provided must be properly documented, and a visit summary must be provided to the patient.
• Care coordination. The provision of telemedicine services must include care coordination with the patient’s medical home and/or existing treating physicians, which includes, at minimum, identifying the patient’s existing medical home and treating physician(s) and providing such physician(s) with a copy of the medical record.
• Emergency referral protocols. Providers must establish protocols for emergency referrals.
• Privacy and security. Delivery of telemedicine services must abide by laws addressing the privacy and security of patients’ medical information.

Alexis Gilroy, JD is a partner with the Jones Day law firm of Washington, DC.