Legal barriers are limiting telehealth's reach, experts say

Is telehealth really "care anywhere"? Not always, said legal experts at the 2018 Public Health Law Conference on Thursday. (Getty Images/metamorworks)

PHOENIX, Ariz.—Telehealth can provide patients access to care no matter where they are geographically, proponents say. Stakeholders from Walgreens and American Well to BlueCross BlueShield and the Department of Veterans Affairs have used the word “anywhere” to tout their work in the telehealth realm. 

But “anywhere” may be a bit of a stretch, according to legal experts at the 2018 Public Health Law Conference on Thursday.

Whether a medical professional can treat someone via telehealth—and if so, how—varies widely by jurisdiction, since medical practice is regulated at the state level. 

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“All 50 states and most of the territories had at least one law about telehealth,” said Dawn Pepin, J.D., a public health analyst with the Public Health Law Program (PHLP) at the Centers for Disease Control and Prevention (CDC), which analyzed 2,233 telehealth-related statutes and regulations.

RELATED: CMS physician payment proposal nudges open the door for telehealth

And each state may “have multiple laws that describe every single aspect of telehealth and set forth how it’s going to be regulated … [or] just a handful,” Pepin said. Some build telehealth regulations into broader laws about medicine, dentistry, pharmacy, and so on. 

PHLP also reviewed 967 civil lawsuits around telehealth. One case, Planned Parenthood of the Heartland, Inc. v. Iowa Board of Medicine, demonstrated how courts can diverge on telehealth issues. In that case, the Iowa Supreme Court held that the state medical board unduly burdened patients by prohibiting the virtual administration of medication abortions, overturning a district court’s prior ruling. 

Other cases have involved the prescription of controlled substances via telehealth. Teladoc, Inc. v. Texas Medical Board was a win for physicians: A federal district court concluded that requiring a patient-provider relationship to form in-person before the provider could prescribe controlled drugs would be anticompetitive. The state eventually passed a law that loosened those restrictions

Other jurisdictions have been more restrictive. In U.S. v. Valdivieso Rodriguez, the U.S. District Court for the District of Puerto Rico found that physicians in Puerto Rico who distributed controlled substances online were subject to criminal liability. 

RELATED: Telehealth reimbursement uncertainty creating inequities in healthcare

“We can expect litigation to arise from these kinds of issues,” said Rachel Hulkower, J.D., also with PHLP. 

In some cases, patients may lack access to telehealth due to something more fundamental than telehealth law: broadband. Some consider broadband access a “superdeterminant” of health because it can affect various other aspects of health. Thirty-four million Americans, including 23 million Americans who live in rural areas, do not have it, said Brittney Bauerly, J.D., a staff attorney with the Network for Public Health Law. 

“Some cities lacking affordable high-speed internet access have moved to build their own broadband networks, but they’re sometimes preempted from doing so,” Bauerly explained, due to state laws that prohibit municipalities from providing telecommunications services or procedural barriers. 

As Pepin noted, "it really defeats the purpose if you cannot get to the communities that really need this type of service."

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