Georgia's Telemedicine Laws and Regulations: Protecting Against Health Care Access
| Citation | Vol. 68 No. 2 |
| Publication year | 2017 |
Georgia's Telemedicine Laws and Regulations: Protecting Against Health Care Access
Adelyn B. Boleman
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Georgia currently ranks 44th in the nation in terms of patient access to physicians.1 Roughly 52% of Georgia's physicians are located in five areas that serve just 38% of the state's population.2 However, technological advancements present opportunities to bridge the gap between physicians willing to treat patients through non-traditional means and patients simply wanting access to physicians.3 Telemedicine, sometimes referred to as telehealth, is generally known as the use of audio, video, and other types of data communication to exchange medical information
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from one site to another to connect healthcare professionals with patients.4 While telemedicine can extend patient access to health care across state lines, particularly to patients in rural areas where medical care is often sparse, many states, including Georgia, currently maintain restrictive regulations and standards on telemedicine that inhibit its growth.5
States justify the stringent telemedicine standards as a necessary exercise of state police power to protect citizens.6 The Tenth Amendment to the United States Constitution7 expressly allows this state regulation by reserving for the states those powers not delegated by the Constitution nor prohibited by it to the states.8 Thus, states have long used the Tenth Amendment as their source of power to regulate certain activities affecting the health, safety, and welfare of their citizens.9 Specifically, states enact laws and regulations outlining the practice of medicine and the responsibility of each state's medical board to regulate such in order to protect the public from the fraudulent, unauthorized, or incompetent practice of medicine.10 The Supreme Court of the United States has also recognized this reserved state power.11
However, there are legal and regulatory barriers to the growth of telemedicine on both the state and local level because of the varying state laws and regulations pertaining to its use.12 Because the regulations of certain states stifle widespread implementation of telemedicine, some advocate for a federal licensure system for physicians using telemedicine.13 While proponents for the state policing system argue the Tenth
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Amendment constitutionally bars the federal government from regulating health care, proponents of a federal licensure system for telemedicine argue that such federal regulation is constitutional and authorized under the Commerce Clause14 and the Taxing and Spending Clause.15
Many states have proposed or enacted legislation that would adopt the Federation of State Medical Board's (FSMB) Model Language for an Interstate Medical Licensure Compact (Compact).16 While Georgia has not yet adopted the Compact, the Georgia Composite Medical Board (Board) is beginning to take steps towards eventual adoption.17 This Compact is one attempt by states to engage in "self-help" by enacting legislation that promotes the expansion and use of telemedicine while still maintaining control of the regulatory aspects of telemedicine health care.18 Essentially, the Compact aims to alleviate the licensing burdens of physicians without compromising the safety of patients.19 Nonetheless, the Compact is by no means perfect.
Based on the unique nature of telemedicine, this Comment addresses the need for Georgia to adopt the FSMB Compact, loosen the rigid requirements for the establishment of a physician-patient relationship prior to a telemedicine encounter, and for Georgia to adopt a separate national standard of care for telemedicine. First, the background section provides an overview of telemedicine, Georgia's current laws and regulations governing the use of telemedicine, and problems presented by these laws and regulations. Next, these problems are assessed in the analysis section, followed by a conclusion that Georgia should adopt the Compact, loosen the rigid burden for establishing the physician-patient relationship prior to a telemedicine encounter, and adopt a separate national standard of care for services provided through telemedicine.
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A. Types of Telemedicine Services
Telemedicine use began over forty years ago by hospitals providing care to patients in remote areas.20 It is now being utilized in the operation of specialty departments, hospitals, home health agencies, consumers' homes and workplaces, as well as by private physician offices.21 Telemedicine is not a separate medical specialty, but rather the services and products are typically part of an investment by healthcare institutions to provide advanced information technology or clinical care.22
Furthermore, when it comes to the reimbursement fee structure and coding for billing, there is typically no distinction made between traditional services provided on-site and services provided through means of telemedicine.23 The American Telemedicine Association (ATA) considers "telemedicine" and "telehealth" to be interchangeable terms covering many types of remote healthcare practices.24 Activities typically considered to be within this definition are transmissions of still images, patient consultations through video conferencing, remote monitoring of vital signs, e-health, including patient portals, continued medical education, and consumer-focused wireless applications and nursing call centers.25 It should be noted that each state has its own definition of telemedicine, which will be addressed below.
There are three main types of telemedicine: (1) remote monitoring; (2) store-and-forward; and (3) interactive services.26 First, remote monitoring, which is also referred to as "self-monitoring" or "self-testing," is a type of telemedicine that allows a patient to utilize various technological devices from his or her own home.27 The data from the devices is then transmitted back to the telemedicine system.28 This way, a physician has the ability to remotely monitor patients. This type of monitoring is used mainly for managing chronic diseases and specific conditions such as
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asthma, heart disease, and diabetes mellitus.29 These devices may be used to collect vital signs, blood tests, and electrocardiograms.30
Second, store-and-forward telemedicine involves one physician collecting medical data and conveying this data to a physician or medical specialist.31 Instead of both parties having to be present together for a physical exam, this method relies on documented information or images and a history report.32 Store-and-forward telemedicine is commonly used in the fields of dermatology, pathology, and radiology.33 This technique can save time and provides physicians the ability to serve the public by having more say in the time for assessment.34 However, because this technique relies on documented information and a history report, there is risk of misdiagnosis.35
Third, interactive telemedicine services offer concurrent interactions between physicians and patients.36 Methods used to facilitate the communications are phone conversations, home visits, and online communication.37 Certain evaluations can be performed through telemedicine in a similar manner as traditional face-to-face treatments, such as physical tests, history assessments, psychiatric assessments, and ophthalmology evaluations.38 Additionally, "clinician-interactive" telemedicine services may be a less expensive alternative to personal clinical visits.39 Interactive services can provide immediate advice to patients who require medical attention.40
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Accordingly, telemedicine has the ability to improve cost, efficiency, quality, and patient access to health care.41 One telling example is the success seen with telemedicine use by the Veterans Health Administration (VHA), which first introduced telehealth programs in the 1990s.42 Through telemedicine, the VHA had the ability to provide routine care to veterans with congestive heart failure, hypertension, diabetes, post-traumatic stress disease, depression, and chronic obstructive pulmonary disease.43 In 2012, the VHA served over 150,000 beneficiaries through telemedicine services.44 That year, the annual cost for the telehealth program per patient was $1,600, compared to an amount exceeding $13,000 for traditional home-based care and over $77,000 for care through nursing homes.45 Further, telemedicine "also was associated with a 25 percent reduction in number of bed days of care and a 19 percent reduction in hospital admissions across all VHA patients utilizing telehealth."46
In all, the VHA estimated $6,500 in average annual savings for each patient participating in the telemedicine program in 2012 alone.47 This amount "equates to nearly $1 billion in system-wide savings associated with the use of telehealth in 2012."48 Additional savings come in the form of fewer lost work-days, travel avoided, and all other costs imposed upon patients.49
While most state Medicaid programs provide some form of coverage for telehealth services, the particular coverage criteria varies by state.50 For example, Georgia Medicaid provides live-video reimbursement for certain services that are deemed medically necessary, not in excess of the member's needs, and procedures that are specific, individualized, and
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consistent with symptoms or a confirmed diagnosis.51 These eligible services for Georgia Medicaid are "professional office visits, pharmacologic management, limited office psychiatric services, limited radiological services and a limited number of other physician fee schedule services."52 However, Connecticut Medicaid only provides live-video reimbursement for behavioral health services.53
A concern of policymakers is whether advancements in technology and improved access to telemedicine care will actually result in increased...
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