Imagine that a radiologist who resides in Australia reads a CT scan of a patient brought to an emergency room in Ely after a car accident. The CT scan is transmitted with an artifact that results in an incorrect diagnosis by a neurosurgeon in India, which is conveyed to the ER physician. The fiber optic cable used was installed by a vendor with a principal place of business in California and the video equipment used was made in New Jersey. Who is liable? What law governs? Where is the action brought? Is there insurance coverage? Where can a judgment be enforced? These are complex legal issues that challenge the landscape of telehealth services today.
Aspects of telehealth were introduced in Nevada in 2009 with the creation of “telepharmacy.” A telepharmacy was a pharmacy at a remote site accessible via computer link, video link, and audio link. This enabled a pharmacy technician to dispense drugs to a patient remotely, but under the supervision of a managing pharmacist at the main pharmacy location. In 2013, the outdated language, computer, video, and audio links were replaced with systems that transfer data electronically, telephonically or by fiber optics to keep pace with the current technology.
Nevada jettisoned itself into the age of telehealth in 2015, with the enactment of AB 292. The law defined “telehealth” to be, “the delivery of services from a provider of healthcare to a patient at a different location through the use of information and audio-visual communication technology, not including standard telephone, facsimile or electronic mail.” Health practitioners using telehealth with Nevada patients must have a valid Nevada license and comply with Nevada law. AB 292 required health insurers, including Nevada Medicaid, to cover telehealth services to the same extent as services provided in person. Nevada’s public policy was declared by statute to promote telehealth services, assure reimbursement and resolve legal barriers.
By 2017, Nevada initiated the use of video telehealth technology to reach Nevada’s rural clinics and critical access hospitals with applications for youth-in-crisis, specialty services and psychological testing for mental health patients. The 2017 Nevada legislature produced several pieces of legislation enabling the expansion of telehealth in Nevada. AB 429 ratified the Psychology Interjurisdictional Compact, allowing psychologists licensed in a Compact state to practice via telehealth in other Compact states. AB 474, the Governor’s “omnibus opioid bill,” allows a healthcare practitioner to meet with patients using telehealth to reevaluate treatment plans for controlled substances. SB 53 revises the duties of the director of the Office of Science, Innovation, and Technology to consider the “expansion of telehealth services to reduce healthcare costs” in coordinating broadband services in Nevada.
Notwithstanding Nevada’s progress in telehealth expansion, legal obstacles still remain. The practice of telemedicine across state lines subjects healthcare providers to the licensing requirements of each state where they practice. The lack of uniform licensing requirements and telehealth regulations force healthcare providers to seek legal advice and increase costs of compliance. The advent of interstate licensing compacts, like those adopted by Nevada, is a step in the right direction. However, these compacts generally require ratification by multiple states, financial support, and infrastructure development, before they become fully functional and effective. All of this takes time. Although federal law regarding privacy and security of health information is uniform, each state may also have its own requirements for how healthcare information is to be transmitted and protected. In addition, the duties of confidentiality to the patient, privilege and informed consent may vary from state to state. Professional liability insurance may not adequately cover all aspects of a telehealth services transaction.
Although law lags behind technology, the legal obstacles facing telehealth are gradually being overcome. With Congress battling over how to fix healthcare in the United States, the explosion of healthcare costs and impaired access to health care for many, telehealth may be part of the solution.
Lynn Fulstone, Director, Fennemore Craig Attorneys
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