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CMS Set on Telemedicine, What About the Lawyers?

Emily Berry, for HealthLeaders Media, October 11, 2010

For the past few months, hospitals have been on a carousel ride of revolving telemedicine standards, courtesy of The Joint Commission and the Centers for Medicare & Medicaid Services. Now that the accreditors appear to be moving in the same direction, allowing medical staffs to credential and privilege by proxy, hospitals can turn their attention to the legal best practice surrounding these practitioners.

Location is often the culprit behind overlooked telemedicine best practices. First, medical staffs need to ensure the practitioner has a valid medical license in the state where the patient is located. Secondly, legal experts advise medical staffs to draft contracts with telemedicine providers that give the medical staff home jurisdiction in potential malpractice cases.

“I think the difficult part really has to do with licensure because licensure is such a state law issue,” says Jennifer Breuer, JD, partner and vice chair of Drinker Biddle & Reath’s Health Law Practice Group in Chicago. “The practitioner needs to be licensed in the state where the patient is physically located.”

For example, if the telemedicine practitioner is located in California and the patient is in Connecticut, the practitioner would need a valid Connecticut medical license. To look at a more complex scenario, let’s say the California practitioner had a contract to provide telemedicine services to a hospital system headquartered in Massachusetts with satellite clinics in Connecticut. Again, as long as the telemedicine practitioner is providing services to a patient being treated in Connecticut, the practitioner needs the Connecticut license.

Another potential challenge for medical staffs working with telemedicine providers is determining where a malpractice case will be heard should the situation arise. This term can be negotiated in advance by the parties drafting the telemedicine contract.

Generally, telemedicine contracts have a governing law provision, says Breuer. “Hospitals usually want to make sure that ? if there is going to be litigation, it will happen in their home state and under their law,” she says. The reason for this is mostly practical because hospitals would have to spend more resources defending an out-of-state case, including the time and money spent traveling to the court. It’s also beneficial because the hospital doesn’t have to learn a new set of state laws under which to manage a specific group of practitioners; it can function under the same set of laws it applies to other practitioners.

After nailing down the regulatory standards and legal best practices, hospitals should be well on their way to building a positive working relationship with telemedicine practitioners.