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Telecommunications in health care
FEBRUARY 1998, VOL 67, NO 2 OR NURSING LAW
Telecommunications in health care
T
hanks to the “information superhighway” and the increasing use of telecommunications to deliver services, health care professionals are confronted with new questions regarding the ownership, quality, and security of the electronic information that is created, transmitted, and eventually stored as a result of these services. As health care systems extend across state lines-even the globe-to provide services to patients, additional questions regarding professional licensure, reimbursement, and liability loom on the horizon. The purpose of this article is to discuss some of the legal issues that confront today’s health care professionals as they manage the many opportunities (and challenges) associated with the increasing use of telecommunications in the delivery of health care services, known as “telehealth.” The term telehealth in this article can best be described as the delivery of health care services across distances through the use of telecommunications and interactive audiovisual capabilities. TEiECO~~UNlC TIONS A IN HEALTH CARE Over the years, telecommunications have evolved to the point that audiovisual and digital data can be transmitted to and from remote locations around the world. Just as teleradiology first made diagnostic services available to isolated communities, teleconferencing has provided meaning-
ful opportunities for long-distance programs and consultations among and between health care professionals and their patients. Recent developments in telesurgery, including the use of remote-controlled robotic devices and artificial intelligence, have, to a limited extent, made emergency services available to victims during times of war or disaster. Generally speaking, the transmission of information to remote locations requires one of many different types of technology, ranging from microwaves and satellite links to long-distance telephone lines and high-speed switching systems that depend on fiber-optic cable and computer modems. Whereas a simple system permits a laboratory to transmit preoperative test results to a busy surgery center, a more elaborate system that involves two-way video and audio capabilities would allow a patient’s surgery, for example, to be controlled by a host of providers located in multiple, and sometimes remote, locations. Despite its many benefits, however, telehealth raises many questions regarding the proper management of patient care as well as the many sources of information that are created and transmitted as a result of these sweeping technologies. INFORMATION MANAGEMENT Legal and ethical requirements that protect a patient’s privacy and the confidential nature of the patient’s personal health care information cause all health care 458 AORN JOURNAL
professionals to act prudently in the management of patient care services and related information systems. These requirements become particularly important as health care systems move toward a continuum of care that integrates a host of satellite service locations and provider groups that often require access to and use of confidential database systems. Existing laws offer only limited protection. Although state laws attempt to protect confidential patient care information and records, these laws may vary as they relate to different provider groups within a given state, and more importantly, significant differences occur from state to state. Given the increasing need to transmit information across state lines-and even the globe-these inconsistencies and gaps only aggravate the situation further. Although federal laws such as the Privacy Act of 1974 and the Americans with Disabilities Act begin to address these issues, many inconsistencies and gaps will remain until Congress passes legislation similar to the initiatives introduced in past years (eg, Medical Records Confidentiality Act of 1995 [S1360, 104th Congress, first session]; Fair Health Information Practices Act [HR435, 104th Congress, first session, 19951; Medical Privacy in the Age of New Technology Act [HR 3482,104th Congress, second session, 19961). Database user agreements that are used by health care systems and their medical staff members
FEBRUARY 1998, VOL 67, NO 2
LICENSURE The general rule about professional licensure is that out-of-state health care professionals who act as consultants to in-state practitioners may be deemed to engage in the unauthorized practice of medicine if they are not licensed in both states. Consistent with this reasoning, many states have enacted specific requirements for out-of-state physicians who provide diagnostic or treatment services involving patients who are physically located within the particular state (Kan Admin Regs 100-26-1 [ 19951; SD Codified Laws Ann 36-4-41 [1996]; Tex Code Ann Art 4495[b], 3.06[I][1] N e s t 19951). To date, no states have passed legislation aimed at regulating the practice of nursing across state lines.
ties. The counties must be designated health professional shortage areas (HPSA) or adjacent to a Metropolitan Statistical Area (Balanced Budget Act of 1997, Act Sec 4206, 4207 [Aug. 1, 19971). This act would take effect by Jan 1,1999. Development of a methodology for reimbursing these consultative services is underway. It is expected that the treating and consulting providers will share a bundled payment that may not exceed the consulting provider’s current fee schedule amount for the services rendered. Provider costs related to telephone line charges and facility fees will not be considered in determining the provider’s fee schedule. During the coming year, the US Department of Health and Human Services (HHS) will report to Congress on its plans to expand access to telemedicine and telehealth systems. As part of this report, HHS is considering making Part B Medicare payments available to health care personnel providing professional consultations to homebound or nursing homebound beneficiaries who do not reside in HPSAs and for whom transfer for health care services poses a hardship.
RElMBURS€M€NT The Balanced Budget Act of 1997 is one of the first steps taken by the federal government to recognize, and eventually reimburse, health care professionals who participate in health care delivery using telecommunications. The act requires Medicare to make payments available to physicians and other authorized professionals who use telecommunications systems to consult with health care providers who provide covered services to beneficiaries residing in rural coun-
LIABILITY Legal liability is a concern to many telehealth practitioners, and a frequent question is whether a treating physician’s consultation with a specialist about a patient’s condition is such that it creates a relationship between the patient and the specialist. The existence of such a relationship determines whether a patient receiving medical treatment can file a lawsuit against a particular practitioner.‘ The majority of courts have held that telephone consultations in which the special-
and other participating providers have become important in clarifying the many operating procedures and safety measures that users must agree to for access to and use of a database. “Hold harmless” language also is included in these agreements to limit the system’s liability for any unauthorized access, use, or disclosure by a particular user or one of the user’s office personnel.
NOTES 1. P F Granade, J H Sanders, “Implementing telemedicine nationwide: Analyzing the legal issues,”Defense
ist did not examine or speak with the patient, review the patient’s medical record, or otherwise direct the course of the patient’s treatment does not result in a physicianpatient relationship (eg, Bienz v Central Stlj$olk Hospitat [ 163 AD 2d 269,557 NY Supp 2d 139 { 199011; Clanton v Von Hamm [ 177 Ga App 694,340 SE2d 627 { 198611; Davis v Weiskopf[108 I11 App 3d 505,439 NE2d 60 { 1982]]).2 Liability associated with telecommunication quality also is a concern, given the many manufacturers, suppliers, and vendors who are responsible for the hardware, software, and many intricate steps involved in the compression, encryption, transmission, and storage of electronic data. Theories of negligence concerning faulty data compression that results in a distorted visual image, a faulty medical decision, and an unsatisfactory patient outcome have been considered within medical-legal circles? Efforts to effectively manage and, more importantly, limit the legal risks associated with the delivery of these telehealth services depends in large part on the rapport and relationship that is established and maintained among and between health care systems, health care professionals, and their patients. As face-to-face encounters are replaced with video images and hands-on physical examinations are transformed into teleconferences, the organizations and professionals behind these services must work harder to address patient expectations, questions, and concerns that continue to exist amidst all of these sweeping changes. SUSAN E. ZlEL RN, JD KRIEGDEVAULT ALEXANDER & CAPEHART INDIANAPOLIS
Counsel Journal (January 1996) 67-73. 2. J P McMenamin, “Telemedicine: Technology and the law,” For the Defense (July 1997) 10-16 .
459 AORN JOURNAL
Telecommunications in health care
T
hanks to the “information superhighway” and the increasing use of telecommunications to deliver services, health care professionals are confronted with new questions regarding the ownership, quality, and security of the electronic information that is created, transmitted, and eventually stored as a result of these services. As health care systems extend across state lines-even the globe-to provide services to patients, additional questions regarding professional licensure, reimbursement, and liability loom on the horizon. The purpose of this article is to discuss some of the legal issues that confront today’s health care professionals as they manage the many opportunities (and challenges) associated with the increasing use of telecommunications in the delivery of health care services, known as “telehealth.” The term telehealth in this article can best be described as the delivery of health care services across distances through the use of telecommunications and interactive audiovisual capabilities. TEiECO~~UNlC TIONS A IN HEALTH CARE Over the years, telecommunications have evolved to the point that audiovisual and digital data can be transmitted to and from remote locations around the world. Just as teleradiology first made diagnostic services available to isolated communities, teleconferencing has provided meaning-
ful opportunities for long-distance programs and consultations among and between health care professionals and their patients. Recent developments in telesurgery, including the use of remote-controlled robotic devices and artificial intelligence, have, to a limited extent, made emergency services available to victims during times of war or disaster. Generally speaking, the transmission of information to remote locations requires one of many different types of technology, ranging from microwaves and satellite links to long-distance telephone lines and high-speed switching systems that depend on fiber-optic cable and computer modems. Whereas a simple system permits a laboratory to transmit preoperative test results to a busy surgery center, a more elaborate system that involves two-way video and audio capabilities would allow a patient’s surgery, for example, to be controlled by a host of providers located in multiple, and sometimes remote, locations. Despite its many benefits, however, telehealth raises many questions regarding the proper management of patient care as well as the many sources of information that are created and transmitted as a result of these sweeping technologies. INFORMATION MANAGEMENT Legal and ethical requirements that protect a patient’s privacy and the confidential nature of the patient’s personal health care information cause all health care 458 AORN JOURNAL
professionals to act prudently in the management of patient care services and related information systems. These requirements become particularly important as health care systems move toward a continuum of care that integrates a host of satellite service locations and provider groups that often require access to and use of confidential database systems. Existing laws offer only limited protection. Although state laws attempt to protect confidential patient care information and records, these laws may vary as they relate to different provider groups within a given state, and more importantly, significant differences occur from state to state. Given the increasing need to transmit information across state lines-and even the globe-these inconsistencies and gaps only aggravate the situation further. Although federal laws such as the Privacy Act of 1974 and the Americans with Disabilities Act begin to address these issues, many inconsistencies and gaps will remain until Congress passes legislation similar to the initiatives introduced in past years (eg, Medical Records Confidentiality Act of 1995 [S1360, 104th Congress, first session]; Fair Health Information Practices Act [HR435, 104th Congress, first session, 19951; Medical Privacy in the Age of New Technology Act [HR 3482,104th Congress, second session, 19961). Database user agreements that are used by health care systems and their medical staff members
FEBRUARY 1998, VOL 67, NO 2
LICENSURE The general rule about professional licensure is that out-of-state health care professionals who act as consultants to in-state practitioners may be deemed to engage in the unauthorized practice of medicine if they are not licensed in both states. Consistent with this reasoning, many states have enacted specific requirements for out-of-state physicians who provide diagnostic or treatment services involving patients who are physically located within the particular state (Kan Admin Regs 100-26-1 [ 19951; SD Codified Laws Ann 36-4-41 [1996]; Tex Code Ann Art 4495[b], 3.06[I][1] N e s t 19951). To date, no states have passed legislation aimed at regulating the practice of nursing across state lines.
ties. The counties must be designated health professional shortage areas (HPSA) or adjacent to a Metropolitan Statistical Area (Balanced Budget Act of 1997, Act Sec 4206, 4207 [Aug. 1, 19971). This act would take effect by Jan 1,1999. Development of a methodology for reimbursing these consultative services is underway. It is expected that the treating and consulting providers will share a bundled payment that may not exceed the consulting provider’s current fee schedule amount for the services rendered. Provider costs related to telephone line charges and facility fees will not be considered in determining the provider’s fee schedule. During the coming year, the US Department of Health and Human Services (HHS) will report to Congress on its plans to expand access to telemedicine and telehealth systems. As part of this report, HHS is considering making Part B Medicare payments available to health care personnel providing professional consultations to homebound or nursing homebound beneficiaries who do not reside in HPSAs and for whom transfer for health care services poses a hardship.
RElMBURS€M€NT The Balanced Budget Act of 1997 is one of the first steps taken by the federal government to recognize, and eventually reimburse, health care professionals who participate in health care delivery using telecommunications. The act requires Medicare to make payments available to physicians and other authorized professionals who use telecommunications systems to consult with health care providers who provide covered services to beneficiaries residing in rural coun-
LIABILITY Legal liability is a concern to many telehealth practitioners, and a frequent question is whether a treating physician’s consultation with a specialist about a patient’s condition is such that it creates a relationship between the patient and the specialist. The existence of such a relationship determines whether a patient receiving medical treatment can file a lawsuit against a particular practitioner.‘ The majority of courts have held that telephone consultations in which the special-
and other participating providers have become important in clarifying the many operating procedures and safety measures that users must agree to for access to and use of a database. “Hold harmless” language also is included in these agreements to limit the system’s liability for any unauthorized access, use, or disclosure by a particular user or one of the user’s office personnel.
NOTES 1. P F Granade, J H Sanders, “Implementing telemedicine nationwide: Analyzing the legal issues,”Defense
ist did not examine or speak with the patient, review the patient’s medical record, or otherwise direct the course of the patient’s treatment does not result in a physicianpatient relationship (eg, Bienz v Central Stlj$olk Hospitat [ 163 AD 2d 269,557 NY Supp 2d 139 { 199011; Clanton v Von Hamm [ 177 Ga App 694,340 SE2d 627 { 198611; Davis v Weiskopf[108 I11 App 3d 505,439 NE2d 60 { 1982]]).2 Liability associated with telecommunication quality also is a concern, given the many manufacturers, suppliers, and vendors who are responsible for the hardware, software, and many intricate steps involved in the compression, encryption, transmission, and storage of electronic data. Theories of negligence concerning faulty data compression that results in a distorted visual image, a faulty medical decision, and an unsatisfactory patient outcome have been considered within medical-legal circles? Efforts to effectively manage and, more importantly, limit the legal risks associated with the delivery of these telehealth services depends in large part on the rapport and relationship that is established and maintained among and between health care systems, health care professionals, and their patients. As face-to-face encounters are replaced with video images and hands-on physical examinations are transformed into teleconferences, the organizations and professionals behind these services must work harder to address patient expectations, questions, and concerns that continue to exist amidst all of these sweeping changes. SUSAN E. ZlEL RN, JD KRIEGDEVAULT ALEXANDER & CAPEHART INDIANAPOLIS
Counsel Journal (January 1996) 67-73. 2. J P McMenamin, “Telemedicine: Technology and the law,” For the Defense (July 1997) 10-16 .
459 AORN JOURNAL