The Legal Landscape of Teledermatology

Teledermatology is advertised a major breakthrough in telehealth. But, is the tort system ready for widespread adoption?

INTRODUCTION

In the last decade, clinical researchers and entrepreneurs have focused on teledermatology as a major solution to increase access to dermatology services while improving the patients’ experience.1-3 Historically, teledermatology has been categorized into 2 branches: live-interactive (synchronous) and store-and-forward (asynchronous). The live-interactive modality involves a dermatologist evaluating a remote patient in real time, but is generally less cost-effective.4 Conversely, the store-and-forward modality has the potential to increase cost-effectiveness and improve access by evaluating the patient asynchronously.5,6

Yet, widespread adoption of teledermatology has not been as rapid as expected. For example, only about 9% of community health center primary care physicians and 36% of academic dermatologists had prior use of dermatology in a recent study. Major adoption barriers identified include reimbursement, technology, training, and liability concerns.7-9 Recently, several state legislations have attempted to foster the adoption and appropriate use of teledermatology.

REIMBURSEMENT

Many states have enacted “parity” laws for telemedicine programs, such as teledermatology, which ensure that clinicians are reimbursed the same amount for telehealth services as in-person services. However, many of these laws also have technology restrictions that limit the type of telehealth service as well as the populations covered, which results in coverage of mostly live-interactive services for underserved rural populations. The US Congress has recently introduced a bill, the Medicare Telehealth Parity Act of 2015, which expands the services and populations covered, but the success of this bill is not guaranteed.

Medicare: Teledermatology consultations that are reimbursable must use live-interactive, or synchronous, modalities. Patients are geographically limited to Health Professional Shortage Areas that are not in a Metropolitan Statistical Area. This program requires that the patient was seen from selected “originating sites” and that the provider be a physician, nurse practitioner, or physician assistant. Finally, only certain services are eligible for reimbursement.

Nevertheless, these services change each year. If all these prerequisites are met, then a provider can use a “GT” modifier for the clinician reimbursement, in addition to seeking reimbursement for a facility fee.10

Medicaid: Forty-eight states have some form of coverage, but only 4 (Delaware, Iowa, Nevada, and Oklahoma) have parity coverage with few restrictions. Restrictions include the originating site of the telehealth consultation (home vs school vs clinic), technology (cell phone vs desktop-based applications), and modality (synchronous vs asynchronous). As the laws are rapidly changing, the National Telehealth Policy Resource Center has an updated coverage map.

Private insurance: Thirty states have parity laws that require commercial insurers to reimburse providers for live-interactive teledermatology services. Of these, 22 states do not have modality or clinician restrictions for coverage.11 In the other states, larger insurance carriers may reimburse for telehealth services based on the patient’s particular policy. For more information about particular states, the American Telemedicine Association has an updated table.

Out-of-pocket: Clinicians who are providing telehealth services not covered by any insurance can choose to charge a convenience fee that is billed directly to the patient. Various services allow physicians to customize a patient portal for patients who want this convenience. Even further, some services allow physicians to perform teledermatology consultations for patients whom they have never met. Outside of integrated health systems, such as the Veteran’s Administration, direct-to-patient teledermatology is still uncommon in the United States.

LICENSURE, CREDENTIALING, AND PRESCRIBING

Each state is responsible for setting individual licensure and credentialing rules for their state. This individualized credentialing process creates an administrative barrier to practicing teledermatology across states. Thus, many nationwide telehealth and credentialing companies have emerged to assist clinicians in this process. Some proponents of teledermatology promote an interstate telehealth licensure compact to facilitate practice across state lines.12 However, opponents argue that the creation of a national licensure would leave patients vulnerable to neglect and create an even greater national credentialing bureaucracy.

In line with the goals of expanding access to underserved populations, some lawmakers have also promoted the ability for non-physicians to practice telehealth, which occurs in 17 states. Furthermore, more states do not require a licensed health professional present during the consultation.

Some states require that a physician have a pre-existing in-person relationship with a patient before a remote prescription can be made. This would limit the use of teledermatology for patient follow-ups, a use-case that is highly promoted by the American Academy of Dermatology.13 The American Telemedicine Association recently put out practice guidelines in 2016 that sets the standard of practice for teledermatology.

LIABILITY

Much hesitation to teledermatology adoption stems from the concern of liability in the setting of clinical ambiguity or inadequate technology. To date, there have been no legislations differentiating telemedicine from in-person practice.14 Therefore, a clinician assumes full liability when performing a telemedicine consultation. Many insurance companies do require physicians to disclose their involvement in telemedicine practices.

A majority of the malpractice cases regarding telemedicine arise from physicians prescribing medicines across states. However, none of these have centered on teledermatology.

CONCLUSION

Overall, US national and state policies are rapidly changing to accommodate the demand for teledermatology. Although the regulatory and reimbursement policies are lagging behind the technology, teledermatology still holds much promise. Much is still unknown about the appropriate clinical cases for teledermatology due to the large variability of patient populations, clinician abilities, technology quality, and access gaps. It is prudent for governing bodies to proceed cautiously. However, implemented policies should continue to foster the appropriate use of this promising technology.

*This article was adapted and updated from a publication in conjunction with SkyMD, a teledermatology company.

REFERNCES

1. Warshaw EM, Hillman YJ, Greer NL, et al. Teledermatology for diagnosis and management of skin conditions: A systematic review. Journal of the American Academy of Dermatology. 2011;64(4):759-772.e721.

2. Nelson CA, Takeshita J, Wanat KA, et al. Impact of store-and-forward (SAF) teledermatology on outpatient dermatologic care: A prospective study in an underserved urban primary care setting. Journal of the American Academy of Dermatology. Mar 2016;74(3):484-490 e481.

3. Fogel AL, Sarin KY. A survey of direct-to-consumer teledermatology services available to US patients: Explosive growth, opportunities and controversy. J Telemed Telecare. Jan 4 2016.

4. Whited JD. Teledermatology. The Medical clinics of North America. Nov 2015;99(6):1365-1379, xiv.

5. Datta SK, Warshaw EM, Edison KE, et al. Cost and Utility Analysis of a Store-and-Forward Teledermatology Referral System: A Randomized Clinical Trial. JAMA dermatology. Dec 1 2015;151(12):1323-1329.

6. Livingstone J, Solomon J. An assessment of the cost-effectiveness, safety of referral and patient satisfaction of a general practice teledermatology service. London journal of primary care. 2015;7(2):31-35.

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8. Armstrong AW, Kwong MW, Chase EP, Ledo L, Nesbitt TS, Shewry S. Why some dermatologists do not practice store-and-forward teledermatology. Archives of dermatology. 2012;148(5):649-650.

9. Ogbechie OA, Nambudiri VE, Vleugels RA. Teledermatology perception differences between urban primary care physicians and dermatologists. JAMA dermatology. Mar 2015;151(3):339-340.

10. How to Get Reimbursed for Telehealth. eVisit. 2015.

11. Thomas L, Capistrant G. State Telemedicine Gaps Analysis: Coverage and Reimbursement. 2016.

12. Chaudhry HJ, Robin LA, Fish EM, Polk DH, Gifford JD. Improving access and mobility--the Interstate Medical Licensure Compact. The New England journal of medicine. Apr 23 2015;372(17):1581-1583.

13. Dermatology AAo. AAD Position Statement on Telemedicine. 2013.

14. Natoli C. Summary of Findings Malpractice and Telemedicine. Center for Telehealth & eHealth Law. 2009.