How Minnesota Avoided a Texas-Sized Mess Over Telemedicine

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There has been much talk of late about ways to expand the availability of telemedicine services, particularly in certain areas of rural Minnesota. Measures designed to expand broadband coverage to currently unserved rural areas of Minnesota point to part of the solution. However, the Governor’s Task Force on Broadband recently issued a report stating that 90 percent of the state of Minnesota now has access to broadband speeds of at least 10Mbps upload and 5Mbps upload. A bigger part of the problem may have been resolved last year thanks to two new key laws passed last year by the Minnesota Legislature. The first is the adoption of the Interstate Medical Licensure Compact (codified at Minn. Stat. section 147.38). The compact is an effort coordinated by the Federation of State Medical Boards to establish an expedited process for physicians with a license in one state to obtain a medical license in another state. The expedited licensure process is only available to physicians based in a state that has adopted the compact (by passing enabling legislation) that seek to practice medicine in another state that has also adopted the compact legislation. The second key law is the Minnesota Telemedicine Act, which was adopted by the Minnesota Legislature last year, and which became effective Jan. 1, 2016. The Telemedicine Act requires health insurance carriers to cover medical services provided via telemedicine in the same manner as coverage of the same services provided to a patient in person.

In passing this important legislation, Minnesota appears to be avoiding the kind of mess happening in Texas. A lawsuit by Teledoc, Inc. against the Texas Medical Board alleges that regulations adopted by the board illegally and unconstitutionally prohibit and interfere with Teledoc’s ability to provide telemedicine services to patients in Texas. Teledocs claims the regulations are anti-competitive and are motivated by political pressure placed on the board by the powerful physicians lobby in Texas. The board denies those claims, asserting that the regulations are designed to protect patient safety. Teledocs provides patient and consultation and prescriptions without a face-to-face physical examination of the patient. The board alleges this practice violates new regulations issued by the board and jeopardizes patient safety. So how do the new Minnesota laws help avoid the courtroom battle happening in Texas?

The Interstate Medical Licensure Compact

Telemedicine practitioners have complained that state by state licensing procedures are a barrier to providing telemedicine services. The compact is an interstate agreement that allows a physician with a license in their home state to obtain a license in a compact-member state through an expedited process. Seven states were required to form the compact. Twelve states have passed the enabling legislation, including Minnesota, so the compact has been officially created. A license obtained through the compact’s expedited process is not a special license. Physicians licensed through the compact enjoy the same privileges and are subject to the same regulations as any other doctor practicing medicine in that state. Physicians obtain a license through the expedited process, but the compact does not change the medical licensure laws or regulations of any compact-member state. To be eligible for a license in a compact state, a physician must:

• Have a full, unrestricted license to practice medicine in a compact state.

• Have an unlimited specialty certification.

• No discipline on any state medical license.

• No discipline related to controlled substances.

• Not be under investigation by any licensing or law enforcement agency.

• Have passed the USMLE or COMLEX within three attempts.

• Have successfully completed a graduate medical education (GME) program.

Any disciplinary actions taken against a physician operating under a compact-license can be sanctioned both in the foreign state as well as in the physician’s home state. Procedures, forms, and rules necessary to implement the compact will be handled by an Interstate Compact Commission. Each member state will have two representatives on the commission. The work of that commission is just getting started. Its third meeting is scheduled for March 31-April 1, 2016 in St. Paul.

The Minnesota Telemedicine Act

Proponents of telemedicine have also complained of inconsistent insurance coverage of telemedicine services. Testimony provided in legislative hearings on the bill highlighted some of these disparities. For example, some insurance policies would pay for telemedicine services for patients located in rural medical care sites, but not for telemedicine provided to patients located at urban sites. In addition, some policies would not cover the following types of services, if provided via telemedicine: audiology, pharmacists, genetic counselors, RN certified diabetic counselors, physical, occupational, and speech therapy, dentistry, and optometry services.

The Minnesota Telemedicine Act directly addresses these concerns. Specifically, the new law (codified at Minn. Stat. section 62A.67 et seq.) provides, “A health carrier shall not exclude a service for coverage solely because the service is provided via telemedicine and is not provided through in-person consultation or contact between a licensed health care provider and a patient.” Further, the new law provides, “A health carrier shall reimburse the distant site licensed health care provider for covered services delivered via telemedicine on the same basis and at the same rate as the health carrier would apply to those services if the services had been delivered in person by the distant site licensed health care provider.” The issues resolved by these two provisions of the law are at the heart of the litigation in Texas.

Importantly, the Minnesota Telemedicine Act clarifies that it does not: (1) require an insurance company to provide coverage for services that are not medically necessary; (2) prohibit a health carrier from establishing criteria that a health care provider must meet to demonstrate the safety or efficacy of any telemedicine service, so long as the criteria are not unduly burdensome; or (3) prevent an insurance company from requiring documentation to prevent fraudulent insurance claims.

Finally, the Minnesota Telemedicine Act provides a definition for what constitutes telemedicine. Telemedicine means:

The delivery of health care services or consultations while the patient is at an originating site and the licensed health care provider is at a distant site. A communication between licensed health care providers that consists solely of a telephone conversation, e-mail, or facsimile transmission does not constitute telemedicine consultations or services. A communication between a licensed health care provider and a patient that consists solely of an e-mail or facsimile transmission does not constitute telemedicine consultations or services. Telemedicine may be provided by means of real-time two-way, interactive audio and visual communications, including the application of secure video conferencing or store-and-forward technology to provide or support health care delivery, which facilitate the assessment, diagnosis, consultation, treatment, education, and care management of a patient’s health care.

A Major Step Forward

The passage of the Interstate Medical Licensure Compact and the Minnesota Telemedicine Act greatly reduce barriers to the provision of telemedicine services in Minnesota. Telemedicine services can greatly reduce the cost of obtaining health care for rural Minnesota residents and the disabled. The new laws also are likely to allow for greater competition in the provision of health care services in Minnesota, placing further downward pressure on medical costs for rural and disabled Minnesota residents. One witness at legislative hearings on the bill, John Goodman, a telemedicine consultant from Winona, Minnesota described the measures as a “major step forward” for telemedicine. While these new laws have just taken effect, and the true impact remains to be seen, it seems hard to dispute Mr. Goodman’s assessment. At the very least, it seems safe to say that Minnesota has avoided the Texas-sized mess unfolding in a courtroom in Austin.   Tony Mendoza 

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