H.r. 2068: Expansion of Quality or Quantity in Telemedicine in the Rural Trenches of America?

• Publication year: 2009
• Citation: Vol. 11 No. 2009

Lindsey T. Goehring⁰

Technology changed the practice of medicine enabling telemedicine, the practice of medicine distantly through telecommunication systems. Telemedicine enables citizens living in rural communities throughout the United States to better access healthcare and medical services. House Bill 2068, introduced in April 2009, calls for further expansion of generalized and specialized telemedicine in rural communities for those who qualify for Medicare. In a litigious society, medical practitioners practicing telemedicine must always think of the possibility of lawsuits for medical malpractice. Medical professionals, once licensed, are guided in their work by medical standards of care, which are currently created and regulated by individual states. Since telemedicine is designed to carry the practice of medicine across state borders, there should be clear licensing laws and national standards of care for telemedicine which all medical practitioners can follow. Uniformity in licensing and medical standards of care not only provide a substantive safeguard to the physician so that he or she knows how to act, but will augment the quality of care that a patient receives from his or her practitioner.

I. Introduction

Telemedicine, as defined by the American Medical Association ("AMA"), is the "medical practice across distance via telecommunications and interactive video technology."¹ This practice of medicine began several decades ago with telephone consultations and "fixed-camera video[s]."² Telemedicine continues to advance with technology and today, physicians are capable of performing "remote surgery."³ There are four variations of telemedicine: "(1) doctor-to-doctor exchanges; (2) remote clinical, diagnostic, and monitoring services; (3) direct provision of patient care; and (4) outsourcing hospital administration and claims management functions to other countries."⁴ The advancement of telemedicine is important because it benefits rural communities in the United States and the world alike.⁵ Participants in the practice of telemedicine include physicians, both generalists and specialists along with nurses and other medical personnel.⁶ For the purposes of this Recent Development, the focus will be on the effect telemedicine has on physicians as well as rural communities in the U.S. and what can be done to improve the system.

Although telemedicine seems to be just what the doctor ordered, it does have crucial drawbacks. Today, telemedicine is not burdened by deficient technology, but rather by legal barriers.⁷ Telemedicine is plagued with unclear licensing laws as well as ambiguous liability regulations and standards of care.⁸ Critics of telemedicine also point out the impact that releasing confidential information and data over potentially unsecure mediums can have on privacy laws.⁹ Last but not least, there has been some concern over medical insurance and what coverage telemedicine might have.¹⁰ Telemedicine and House Bill 2068 increase in quantity the access to health care in rural areas, making positive strides in benefiting those who ordinarily might have to forego quality healthcare. To further improve the quality of health care underserved areas receive through telemedicine, Congress needs to establish clear licensing laws and national standards of care for telemedicine that will guide the practice of telemedicine and help practitioners and medical personnel avoid malpractice claims.

Part II of this Recent Development introduces House Bill 2068 and gives an overview of the bill's purpose. Part III addresses the expansion of telemedicine to rural communities to incorporate primary and secondary care. Part IV of this Recent Development discusses medical licensing and the need for uniformity in medical licensing for use in telemedicine. Part V describes the standards of care used in the medical field and what a uniform, national standard of care for specialized telemedicine would look like. Part VI addresses whether the federal government would have the authority to regulate the medical standards of care if adopted. Part VII concludes the Recent Development, calling for clear licensing laws for telemedicine to cross state lines as well as national medical standards of care for telemedicine as this will increase the quality of care received by patients.

II. H.R. 2068—The Medicare Telehealth Enhancement Act

on April 23, 2009, U.S. Representative Mike Thompson (CA-1) introduced the Medicare Telehealth Enhancement Act of 2009, referred to as House Bill 2068.¹¹ The purpose of the bill is "to improve the provision of telehealth¹² services under the Medicare Program, [and] to provide grants for the development of telehealth networks."¹³ House Bill 2068 amends Title XVIII (Medicare) of the Social Security Act of 1935 with regards to telehealth services.¹⁴ This bill reflects the expansion of generalized and specialized care in telemedicine to rural areas for those who qualify for Medicare.¹⁵ The provisions of House Bill 2068 primarily pertain to funding;¹⁶ therefore, House Bill 2068 might help to ease some anxiety over what coverage telemedicine will have in the world of health insurance.¹⁷ This bill, however, does little to dispel the concerns over the legal barriers to telemedicine, such as licensing laws and unclear standards of care, which can affect medical malpractice and are necessary to help practitioners and medical personnel avoid litigation.¹⁸

House Bill 2068 calls for additional federal funding to expand telemedicine to rural areas in the country and specifically to those who qualify for Medicare.¹⁹ This Recent Development will mention economic barriers that face telemedicine but will focus primarily on whether this bill properly addresses the geographical and legal barriers facing telemedicine.²⁰ Technology has advanced to the point where primary care can be practiced over the internet and remote surgery can be performed from a distance, but the lack of uniform telemedicine regulations and standards of care make the remote practice of generalized and specialized care exceedingly risky.²¹

III. Step Right Up—Greater Access to Health Care in Rural U.S.

one of the most profound advantages of telemedicine is that it bridges the wide gap between health care in urban areas and that found in rural communities across the country.²² Historically, many people living in rural or remote areas of the country have struggled to gain access to quality primary²³ and secondary health care.²⁴ Perhaps the biggest contributor to the disparity between rural and urban health care is the difference between the rural health economy and the urban health economy.²⁵

A. Telemedicine and the Physician

Certain economic as well as other intangible incentives for physicians explain why physicians tend to stay in cities instead of moving to rural communities to practice medicine.²⁶ The difference in income levels between rural and urban practices, the professional status, and the prestige they may acquire if they practice in urban centers with near-by large medical universities sway physicians in their decision to remain in urban areas.²⁷ Professional isolation²⁸ and few opportunities for continuing education in rural communities, as well as the desire to stay close to their families and places of origin, are also factors that influence physicians.²⁹ With increased technology and telemedicine, doctors are able to choose urban areas where they can be in the midst of medical universities and have greater amounts of prestige, in addition to greater earning potential while practicing in underserved communities from a distance.³⁰ Likewise, some have chosen rural communities where they can communicate with other esteemed physicians, continue their education, and keep abreast of current medicine by using technology.³¹ Thus, despite whether the physician chooses to stay in an urban community or makes the move to a rural community, telemedicine has lessened the negative effects on the physicians' choice and has decreased the rural communities' lack of generalists and specialists.³²

B. Primary/General Care

Primary health care is basic medical care, such as a visit to a family doctor, where a patient will go to receive attention for illnesses like influenza and where they can be prescribed medication.³³ The AMA suggests that there is an overall trend in a decrease of primary care physicians.³⁴ The AMA also contends that regions of the country with a greater supply of physicians may be able to accept new patients in the future, whereas in underserved areas where the supply of physicians is lower, the medical practices may have to close to new patients.³⁵ If the prediction of the AMA is accurate and rural medical practices close their doors to new patients due to fewer available physicians, patients who cannot afford or are unable to travel far distances to seek medical attention could suffer.³⁶ In general, telemedicine provides a source of hope for patients unable to get primary care. Through telephone consultations, and video consultations if the technology exists for rural patients, access to a primary care physician is not impossible for individuals living in underserved areas.³⁷ House Bill 2068 addresses telehealth care coverage for one of the most vulnerable categories in the U.S. population, the elderly over the age of sixty-five and those with disabilities that qualify for Medicare, whose access to primary care is important.³⁸

C. Secondary/Specialized Care

Secondary health care includes remote patient management services and home care, hospital care where technical equipment and extensive monitoring of the patient are necessary as well as specialties in medicine, including cardiology or oncology.³⁹ Specialists often choose to live and practice in urban communities where communication with colleagues is easier, where incomes are higher, and where there is greater prestige in their field of medicine if they are close to a...