Transcript www.ober.com
Telemedicine: Strength, Weaknesses, Opportunities and Treats
March 21, 2012
Steven R. Smith & Sarah E. Swank
www.healthcaregcinstitute.com
Meet Today’s Speakers
Steven R. Smith
Principal, Ober|Kaler [email protected] | 202.326.5006
Speaker
Sarah E. Swank
Principal, Ober|Kaler [email protected] | 202.326.5003
Speaker
Steve and Sarah are cofounders of the Ober|Kaler Health Care General Counsel Institute.
Join us on LinkedIn: Ober|Kaler Health Care General Counsel Institute Group
www.healthcaregcinstitute.com
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Welcome
• Upcoming Ober|Kaler Health Care General Counsel webinars • Webinar housekeeping • Overview of the topic • Discussion • Questions 3 www.healthcaregcinstitute.com
Upcoming Webinars
Survival Tactics for General Counsel: Best Practices When the Government is Investigating Your Organization
– May 16, 2012 from 12:00 pm to 1:30 pm (EST)
Coming soon
– A career focused webinar on internal networking Visit
www.healthcaregcinstitute.com
for slides and recordings.
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Webinar Housekeeping
•
Slides
are located in the left hand corner to download • Type your
questions
into the question window at any time. We will answer them at the end of the program • Webinar slides and audio replay are available at
www.healthcaregcinstitute.com
and posted on LinkedIn for members • Brief
evaluation
(6 questions) will be emailed to you after this program www.healthcaregcinstitute.com
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Today’s Discussion
• Telemedicine NOT just another service • Telemedicine a modality to deliver many types of services • Strategic because: – A tool to determine where and how to provide services – An alternative to brick and mortar – Full service delivery or used to supplement services already in place www.healthcaregcinstitute.com
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Today’s Discussion
• Strategic planning requires: – Assessment of relevant markets and environment – Understanding of competition – SWOT analysis • Important for counsel to “be at the table” early in the planning process • Requires an understanding of strategic elements of telemedicine AND the underlying legal issues • Consider Exit Strategies www.healthcaregcinstitute.com
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Definition of Telemedicine
• • •
CMS Definition:
to patients by practitioners from a distance via electronic communications The provision of clinical services
Definition by the American Telemedicine Association:
Use of medical information exchanged from one site to another via electronic communications to improve patients’ health status
Medicaid:
Seeks to improve a patient’s health by permitting two-way, real time interactive communication between the patient, and the physician or practitioner at the distant site. This electronic communication means the use of interactive telecommunications equipment that includes, at a minimum, audio and video equipment.
www.healthcaregcinstitute.com
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Definition of Telemedicine
• Are the following “telemedicine”?
– Telehealth – Virtual Care – mHealth – Social Media 9 www.healthcaregcinstitute.com
Definition of Telemedicine
•
Non-simultaneous:
involve after-the-fact interpretation or assessment, such as teleradiology services •
Simultaneous:
involve “real-time” interpretation or assessment, such as teleICU services 10 www.healthcaregcinstitute.com
Definition of Telemedicine
•
Examples of Telemedicine:
– Videoconferencing – Transmission of still images – E-health including patient portals – Remote monitoring of vital signs – Nursing call centers – Tele________ [Fill in the blank] 11 www.healthcaregcinstitute.com
Definition of Telemedicine
• Variety of practice settings – Academic medical centers (AMCs) – Health care clinics – Ambulatory Surgery Centers (ASCs) – Home – Global 12 www.healthcaregcinstitute.com
Definition of Telemedicine
• Example from CMS Telemedicine Rule: –
Distant-Site Hospital:
a Medicare-participating hospital that provides the practitioner –
Distant-Site Telemedicine Entity:
can include a non-Medicare participating hospital or entity that provides contracted services in a manner that enables a hospital or a CAH using telemedicine services to meet all applicable CoPs. These entities often include teleradiology, telepathology, and ASCs.
•
NOTE: Not a defined term in the CMS Telemedicine Rule
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Reasons for the Growth of Telemedicine
• Advances in technology • Aging patient population and an increase of patients with chronic diseases • Current regulatory environment with an emphasis on care coordination and shifting care settings • Rural health • Physician shortage • Academic and research institutions with highly specialized services are not always centrally located www.healthcaregcinstitute.com
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Benefits of Telemedicine
• Enable patients to receive care in a more timely manner • Patient safety reasons - no need to move the patient • Enhance patient follow-up in the management of chronic disease conditions • Provide more flexibility to small hospitals and rural hospital with a limited supply of primary care and specialized providers • More cost-effective • Improve patient outcomes and satisfaction • Maintain or expand existing relationships www.healthcaregcinstitute.com
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Downsides to Telemedicine
• Lack of reimbursement • Difficult to oversee and regulate with expanding technology • Patient safety issues – not in person • Decrease patient satisfaction 16 www.healthcaregcinstitute.com
The Joint Commission (TJC)
• “Privileging by proxy” for all TJC-accredited hospitals and CAHs • Standards: LD.04.03.09, MS.13.01.01 and MS.01.01.01 • Goals of TJC Standard – Eliminate duplicative credentialing – Concerns over impeding patient access to health care services • Many agreements already in place under the TJC standards www.healthcaregcinstitute.com
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Prior CMS Telemedicine Rule
•
Prior CMS Telemedicine Rule:
Required the governing body of the hospital or Critical Access Hospitals (“CAH”) to make all privileging decisions based upon the recommendations of its own medical staff after its medical staff had thoroughly examined and verified the credentials of every single practitioner applying for privileges irrespective of whether that practitioner was providing services in person and onsite at the hospital or remotely through a telecommunications system www.healthcaregcinstitute.com
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CMS Telemedicine Rule
•
Hospital Condition of Participation:
Both Hospitals and CAH are permitted to rely upon the credentialing and privileging Decisions made by the distant-site hospitals or distant-site telemedicine entity •
Effective Date:
July 5, 2011 19 www.healthcaregcinstitute.com
The Joint Commission’s Reaction
“The Joint Commission is very pleased that CMS has revised its telemedicine requirements to provide more flexibility to hospitals and lessen their regulatory burden. This is an especially positive step for improving access to care for patients in rural areas. Of particular importance is the fact that critical access hospitals will have additional avenues to benefit from the services of particularly skilled physicians and practitioners.” Mark Chassin, MD, FACP, MPP, MPH, May 6, 2011 www.healthcaregcinstitute.com
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Is It Streamlined?
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Medicare Conditions of Participation (“CoPs”)
• Amended on May 5, 2011 for telemedicine • Effective date July 5, 2011 • Added new paragraphs (a)(8) and (a)(9) to 42 CFR 482.12
• Added new paragraphs (a)(3) and (a)(4) to 42 CFR 482.22
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Medicare CoPs
• 42 CFR 482.12 (a)(8) and (a)(9) are standards for the Governing Body – Allows the Governing Body of the hospital to rely on the GB of the distant site hospital to meet requirements of (a)(1) – (a)(7) of 42 CFR 482.12
• 42 CFR 482.22 (a)(3) and (a)(4) are standards for the Medical Staff – Allows the Medical Staff to rely upon the credentialing and privileging decisions made by the distant site hospital for physicians providing telemedicine services at the distant site hospital www.healthcaregcinstitute.com
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Medicare CoPs
• Summary of New Rule: Both Hospitals and Critical Access Hospitals (“CAH”) are permitted to rely upon the credentialing and privileging decisions made by distant-site hospitals or telemedicine entities so long as certain conditions are met 24 www.healthcaregcinstitute.com
Provisions of CoP for Distant Site Hospitals
•
Permissive
rule – Hospitals that want to rely upon traditional methods of credentialing and privileging free to do so 25 www.healthcaregcinstitute.com
Provisions of CoP for Distant Site Hospitals
• To rely on the credentialing and privileging decisions of a distant site hospital, the hospital must have a written agreement with the distant site hospital that provides: – The Governing Body of the distant site hospital will meet the requirements of (a)(1) through (a)(7) of 42 CFR 482.12 regard ing the distant site physician providing services – The distant site hospital is Medicare certified – The distant-site practitioner is privileged at the distant-site hospital as evidenced by a current list of the practitioner’s privileges provided by the distant site hospital 26 www.healthcaregcinstitute.com
Provisions of CoP for Distant Site Hospitals
– The distant-site physician holds a license issued or recognized by the State in which the hospital whose patients are receiving the telemedicine services is located – The hospital that credentials and privileges the distant-site practitioners shares the practitioner’s performance review information with the distant-site hospital 27 www.healthcaregcinstitute.com
Provisions of CoP for Distant Site Telemedicine Entities (“DSTE”)
• To rely on the credentialing and privileging decisions of a DSTE, the hospital must have a written agreement with the DSTE that provides: – DSTE is a contractor of services to the hospital and furnishes the services so that the hospital can comply with all CoPs for the contracted services 28 www.healthcaregcinstitute.com
Provisions of CoP for DSTEs
– The process and standards of the DSTE for assessing the qualifications of its practitioners at least meet those standards set forth in the CoPs – The physician at the DSTE is privileged at the DSTE providing the telemedicine services and the DSTE provides the hospital with a current list of the physician’s privileges at the DSTE 29 www.healthcaregcinstitute.com
Provisions of CoP for DSTEs
– The physician at the DSTE holds a license issued or recognized by the state in which the hospital whose patients are receiving telemedicine services are located – The hospital that credentials and privileges the physician at the DSTE shares the physician’s performance review information with the DSTE • Minimum required: All adverse events resulting from the telemedicine services and all complaints received about the DSTE or physician www.healthcaregcinstitute.com
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CoPs Governance and Operational Impacts
• • • • • Governing Body Medical Staff Insurance/Liability Peer Review Contractual Obligations 31 www.healthcaregcinstitute.com
Governing Body
• Board Bylaws • Medical Staff Bylaws • Education for Board on its role and what it is delegating • Provisions and approval of Agreement with distant site hospital or DSTE 32 www.healthcaregcinstitute.com
Medical Staff
• Medical Staff Bylaws – Address any aspect of Bylaws or policies that involve the physical presence of a physician • E.g., meeting requirements, definition of patient encounters or contacts, minimum number of contacts or encounters, criteria for new members in departments (sometimes based on “need”), emergency room coverage, etc.
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Medical Staff
• Medical Staff Bylaws – Describe process and information being relied upon – Impact on: • Department chiefs • Credentials Committee • Medical Executive Committee – Required to monitor quality and risk for distant site practitioner • Bylaws, policies or rule changes to describe process • How to effectively do so?
• Communications with DSTE www.healthcaregcinstitute.com
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Medical Staff
• Medical Staff Policies – Physician health – Corrective Action – Fair Hearing – Disruptive behavior 35 www.healthcaregcinstitute.com
Medical Staff
• Fair Hearing Rights – If distant site practitioner is on staff then these will apply – How to implement for telemedicine and distant site practitioners?
– Exit strategy for convenience and when there is a problem 36 www.healthcaregcinstitute.com
Insurance and Liability
• Professional liability coverage for distant site practitioner and hospital or DSTE • Check hospital’s policies – No exclusions or other provisions that could lead to a denial in coverage in working with telemedicine providers – No issues by delegating decisions • D&O coverage www.healthcaregcinstitute.com
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Insurance and Liability
• Indemnification of hospital – Complete reliance on distant site hospital – Need strong provision • Standard of care – Community vs. local?
• Telemedicine quality standards?
• Other credentialing concerns of the hospital that should apply to telemedicine arrangements 38 www.healthcaregcinstitute.com
Peer Review
• Hospital to review the performance of the distant site practitioner and send performance information to the distant site hospital • Peer review information being communicated from one hospital to another (including adverse events and patient complaints) • Is this protected or is there a risk of loss of the privilege for peer review information?
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Peer Review
• Review state laws in jurisdiction of hospital with patient and distant site hospital • Potential use of Patient Safety and Quality Improvement Act of 2005?
– Patient Safety Evaluation System – Reporting of information • Develop policies and procedures to handle these issues 40 www.healthcaregcinstitute.com
Agreement
• Credentialing provisions required by Hospital CoP • Insurance/Indemnification • Who pays?
• Access to privilege information from distant site • Reps and warranties re quality and credentialing • Other 41 www.healthcaregcinstitute.com
Costs and Marketing
• OIG Advisory Opinion No. 11-12 – Who pays for the costs?
– Marketing – Current or past relationship – Reduction in volume – Analysis hinges on no reimbursement 42 www.healthcaregcinstitute.com
Implementation
• Education • Policies • HIPAA/Medical Records • Telemedicine Vendors • State License Requirements • Community Standard 43 www.healthcaregcinstitute.com
Telemedicine Vendors
• Selection process • • • Due diligence RFPs Can it be done in house?
• Contracts • • • • • HIPAA issues Cyber insurance Support levels Warranties Intellectual property
More expensive is
not always better
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State Licensing Requirements
– State licensing requirements vary – Special Telemedicine licenses – Compact licensing is one answer – National licensing requirements 45 www.healthcaregcinstitute.com
Community Standard
• Current standard • Geographical separation • Separate telemedicine standards 46 www.healthcaregcinstitute.com
Questions
47 www.healthcaregcinstitute.com
More questions? Contact us.
Steven R. Smith
Principal, Ober|Kaler [email protected] | 202.326.5006
Sarah E. Swank
Principal, Ober|Kaler [email protected] | 202.326.5003
Steve and Sarah are cofounders of the Ober|Kaler Health Care General Counsel Institute.
Join us on LinkedIn: Ober|Kaler Health Care General Counsel Institute Group
48 www.healthcaregcinstitute.com