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Telemedicine - From a Legal Perspective
Apr 27, 2002
EXECUTIVE SUMMARY
Many of my clients in the software and e-learning sectors have asked me what is happening in the telehealth area, what barriers to implementation are, and what opportunities might exist. I prepared this summary for them.
Telehealth is in its infancy, and there are more questions than answers. This summary is not intended to dispel this, but I do hope it will assist in clarifying the legal issues needing resolution.
The following three major issues must be resolved in order to facilitate the implementation of a broad based telehealth program:
1. Reimbursement of physicians who do not see patients in the typical one on one setting. Fee structures presently emphasize the need for one on one consultations with respect to primary health care delivery.
2. What licenses are needed by providers of telehealth services. The respective provincial Colleges of Physicians and Surgeons are, as of the date of this summary, relying on the need for full (although sometimes temporary) licenses for physicians delivering healthcare to residents of the particular province.
3. Privacy and electronic health record issues (EHR). These two issues are usually discussed in the same breath, but are in fact very distinct depending on whether one is looking at the issues from an institutional perspective (hospitals, physicians) or from a patient perspective. The institutional approach to health care records has so far failed to produce a working model for the implementation of an EHR system, for a variety of reasons. While patients are concerned about privacy, because their needs differ from those of the institution, and because patients view health care records much differently than physicians or institutions, this issue is much less likely to be a barrier to the implementation of specific programs that are patient driven.
A number of secondary issues such as insurance and risk management, the reliability and availability of a communications infrastructure, the need for appropriate e-learning teaching models, and the impact of healthcare commerce also exist. Of these, the development of e-learning programs represents a significant academic and commercial challenge in order to be able to deliver programs in ways that are not grounded in traditional perspectives of what constitutes education.
A profound shift in power is currently taking place in the knowledge based professions. In medicine, this means that much of the detailed information about a particular condition may in fact be in the hands of the patient, and not the physician. This in turns may mean that the traditional physician-patient relationship may evolve in certain aspects to be much more of a collaborative working relationship.
This change will significantly effect the way in which the delivery of health care and telehealth develops. In my view, this shift represents the greatest opportunity for the private sector to participate in a meaningful way in the evolution of healthcare.
REMIBURSEMENT
Because of the political and policy nature of this, the resolution of this issue, at least in British Columbia, is likely to be resolved between the Ministry of Health and the BC Medical Association.
LICENSURE
Whether a license is required has traditionally been decided on whether the particular activity meets the rather general, and largely undefined, text of “practising medicine”. Over 50% of the states in the US have addressed this issue, with the following options:
1. Requirement for full license when consulting with respect to a patient located in the jurisdiction of the licensing authority. This has been coupled in certain cases with the recognition of a physicians license in another jurisdiction.
2. License limited to certain activities, and likely involving a physician in the local jurisdiction – the consulting exception.
3. No license required if a local physician is participating.
This is a simplistic summary of the many licensing variations that exist, but is intended to illustrate the magnitude of difference in jurisdictions with respect to the ease with which telemedicine services can be delivered.
It will be interesting to see whether the regulatory authorities will, in the future, feel compelled to regulate alternate health care providers, and those providing e-learning relating to health care. As health care becomes even more patient centred, the demand for knowledge by patients will also make the quality of the information highly relevant.
PRIVACY
Much has written about this, and I do not intend to review the fundamental issues other than to make a brief observation. In the healthcare field, privacy is most often discussed in the context of needing to keep specific medical conditions private – drug dependency, mental illness, and HIV. Privacy tends to be discussed in a global context, which ignores the social reality that patients are more than willing to compromise their privacy in specific situations. One has only to search the internet to discover that patients have disclosed the most intimate details of their medical experience in the hope that someone will benefit from their experience.
The content of the EHR, in the context of asking “what information should a particular health care provider have access to” is also relevant, particularly at the institutional level. I do not believe that a solution to this issue at an institutional level will be forthcoming in the near term.
In a commercial context, I believe that privacy issues can be dealt with, provided that a patient centred approach is taken and the benefit to the patient in the particular circumstance is clear. This suggests that focused activities towards specific patient activities will be able to overcome obstacles raised by privacy.
Interestingly, the internal use of patient information by human resources departments of large corporations is widespread, and yet HR departments have yet to be regulated in any significant way with respect to this information.
ELECTRONIC HEALTHCARE RECORDS
This area represents the most opportunity to hardware and database driven vendors. The issues are being discussed primarily from the perspective of an institution or IT department. Standards are unlikely to be forthcoming in the near term, and the area is populated with large companies wanting to control the infrastructure. For these reasons, only the most well capitalized companies will able to take a long term perspective will be able to compete in this area.
INSURANCE AND RISK MANAGEMENT
This issue should not be confused with the need for a license. The CMPA, the insurer for practising physicians in Canada, may have views about how, or even whether, telehealth should be delivered to minimize the legal risk to the physician. This does not mean that the activity contemplated is unlawful, but it may practically mean that the physician is at risk, or even worse, uninsured.
The law generally judges the standard of care based on local requirements. This will undoubtedly vary from jurisdiction to jurisdiction, with ample opportunity for conflict between the standard in the patients jurisdiction and the jurisdiction where the physician is located. The increasing use of practice guidelines and agreement on uniform standards may result as a way of attempting to manage liability.
We may also see increased attention paid to patient consents and agreements with respect to liability between the consulting physician and the primary care physician.
With the evolution of public-private healthcare partnerships, physicians may feel also compelled to increase their presence on-line. Whether this results in a benefit or additional legal burden remains to be seen.
E-LEARNING
The e-learning industry is highly fragmented, and generally undercapitalized. There has been limited interaction with the academic educational community, and the focus of e-learning has tended to be content driven. Content driven systems are likely to continue to the extent that the area is driven by corporate needs – needs that focus on staff training, and information management.
The objective of patient centred e-learning is behaviour modification. The development of systems recognizing this represent an opportunity to the e-learning industry to the extent that, at least in the short term, commercial opportunities are uncovered. Otherwise, grants and government funding (as opposed to business R&D) will be the major source of development funding.
The quality of on-line information is an issue to patients, and will remain so. The commercial sector has yet to demonstrate a satisfactory way of measuring quality, and this will undoubtedly be an issue in the future. The Health on the Net Foundation has created a framework to deal with this issue, but it is not widely used.
OTHER HEALTH SERVICES
Commercially driven health services will constitute a significant part of the health care space, particularly in the area of alternative medicine. This is because consumers have already demonstrated a willingness to spend their own money, negating the need for a government buy-in on the particular activity.
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