M.D. Phone Home: New Legislation Expands Telemedicine in Washington

On March 29, 2016, as Governor Inslee signed Senate Bill 6519, Washington became a friendlier state for telemedicine. The new law or “Telemedicine Advancement Law” has a long-winded official title: “Expanding patient access to health services through telemedicine and establishing a collaborative for the advancement of telemedicine.” The Law includes three key accomplishments. First, it establishes a “collaborative for the advancement of telemedicine” through which industry leaders will develop recommendations for how to identify best practices, expand access and improve coverage and payment for telemedicine in the state. Second, the law relaxes certain regulatory standards, such that the Washington telemedicine parity law will apply to services furnished when patients are at home. Third, the law promotes the delivery of safe and effective telemedicine services, while ensuring patient privacy and security. Each of these aspects of the Telemedicine Advancement Law is discussed in greater detail below.

The Collaborative for the Advancement of Telemedicine

The Telemedicine Advancement Law establishes a “collaborative for the advancement of telemedicine” which will research, analyze, and provide guidance for the benefit of professionals furnishing telemedicine services. The collaborative will be hosted by the University of Washington telehealth services department and will be comprised of legislators, healthcare professionals and representatives from universities, hospitals, insurance carriers, and other interested parties.

The collaborative shall convene by July 1, 2016 and is charged with:

• Developing recommendations on improving reimbursement and access to services including originating site restrictions, provider to provider consultative models, and technologies and models of care not currently reimbursed;
• Identifying telemedicine best practices, guidelines, billing requirements, and fraud prevention developed by recognized medical and telemedicine organizations; and
• Exploring other priorities identified by members of the collaborative.

According to the Telemedicine Advancement Law, the collaborative will recommend whether or not a “technical assistance center” should be established. This center would support providers who are expanding or implementing telemedicine technologies and services.

The collaborative will submit an initial progress report to the legislature by December 1, 2016 with follow-up policy reports and recommendations to be provided by December 1, 2017 and December 1, 2018.

Expanding Telemedicine to Patients’ Homes

The Telemedicine Advancement Law also makes it easier for patients to receive telemedicine care from home. Traditionally, state and federal law has restricted coverage for patients seeking to receive telemedicine services while at home. For example, in order for the telemedicine services to be covered by the Medicare program patients must receive the services at a qualifying “originating site.” Medicare defines “originating site” narrowly, as a hospital, physician’s office, rural health clinic, federally qualified health center or other type of clinical location. The consequence of this restrictive definition is that Medicare currently does not pay for telemedicine services if the patient is at home, in the office, or anywhere that is not a traditional health care setting (except in limited circumstances).

Effective January 1, 2017, Washington’s telemedicine parity law will require health plans to “reimburse a provider for a health care service provided to a covered person through telemedicine” when certain preconditions have been met.¹ Similar to Medicare, one of the preconditions in the original parity law was that the patient must be located at an eligible “originating site” such as a hospital, rural health clinic, FQHC, physician office, nursing home, etc. Under the original law, if the patient received telemedicine care at home, health plans had no obligation to pay as the telemedicine parity law did not apply.

The Telemedicine Advancement Law changed the rules by expanding the eligible originating sites to include a patient’s “home.” Thus, the law enhances patient access to telemedicine services – particularly those patients who are homebound, have limited transportation resources, or who live in extremely rural areas. With this change in the law, health plans will be required to cover telemedicine services furnished to patients in their home, provided that all other applicable criteria are met.

Ensuring Safety, Effectiveness, Privacy and Security

The Telemedicine Advancement Law also conditions the application of the telemedicine parity law to those telemedicine services that are safe and effective and that can be provided in a manner consistent with “generally accepted health care practices and standards.” In addition, the technology used to provide the telemedicine services must meet “the standards required by state and federal laws governing the privacy and security of protected health information.” Thus, health plans may appropriately deny coverage for telemedicine services that do not meet the standard of care or that are not delivered in a manner that complies with patient privacy and data security standards.

To date, few legal authorities or payors have attempted to define which specific types of health care services, treatments, diagnostics or procedures are (and which are not) appropriate to provide via telemedicine. For example, the Washington Medical Quality Assurance Commission’s guidance regarding a physician’s use of telemedicine states that “[p]ractitioners using Telemedicine will be held to the same standard of care as practitioners engaging in more traditional in-person care delivery” and “[f]ailure to conform to the standard of care, whether rendered in person or via Telemedicine, may subject the practitioner to potential discipline by the Commission.” Until practitioners have a better understanding of the “generally accepted . . . practices and standards” and the “standard of care” that apply to telemedicine, they will be faced with uncertainty regarding the applicability of the parity law to their telemedicine services, and more significantly, whether the Commission could deem them to be practicing telemedicine outside of the scope of their license.

Regarding privacy and security, compliance with federal privacy and security laws (e.g., HIPAA and the HITECH Act) as well as similar state laws (e.g., RCW § 70.02) are now preconditions to the application of the telemedicine parity law. Telemedicine practitioners generally face the same privacy and security issues that affect conventional providers; however, given the technology available, there are increasingly more opportunities for unauthorized third parties to access patient health information. By enacting the above language, Washington seeks to ensure that telemedicine practitioners carefully consider patient privacy and providers should carefully monitor and update their privacy and security policies as they introduce telemedicine into their practices.

Conclusion

In passing the Telemedicine Advancement Law, Washington’s legislature has taken a positive step in supporting the advancement and expansion of telemedicine. Establishing the collaborative for the advancement of telemedicine will provide a variety of interested parties with an opportunity to analyze and promote the many benefits that telemedicine services provide to patients. Moreover, by expanding the definition of originating site to include a patient’s home, Washington has improved patient access to care. Finally, Washington’s legislature has emphasized its commitment protecting patient safety and privacy by requiring telemedicine care to comply with generally accepted standards and applicable privacy and security laws for the parity law to apply.

FOOTNOTE
1 See RCW §§ 70.41.020, 70.41.230 and chapters 41.05 RCW, 48.43 RCW, and 74.09 RCW. For a discussion of Washington’s parity law, see “Hold the Phone! Washington Adopts Telemedicine Parity Law,” by Adam Romney and Michaela Andrawis.