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Im working on a health care business in Tucson, Arizona and

Customer Question

I'm working on a health care business in Tucson, Arizona and am looking into the legalities related to physician or nurse practitioners treating patients over video outside of telemedicine. I know organizations are currently doing this but I am looking to understand the legalities with malpractice, liability and actual practice ability. Can a physician or nurse practitioner offer medical service through video conference on a clinic type setting? The patient is not a current patient of the provider and it is an online one time service. A concept like Minute Clinic but online. These are pediatric patient populations. Are only certain conditions treated? What are the limitations? What are the HIPPA requirements?
Submitted: 1 year ago.
Category: Legal
Expert:  LawHelpNow replied 1 year ago.

Hello Gloria,

My name isXXXXX a licensed attorney and registered nurse. I am very happy to try and answer your question today. I would also like to take a moment to wish you every success in your business pursuits.

This is a great time to be delving into such waters. In fact, as you may already be aware, quite recently Arizona enacted the Telemedicine Reimbursement Parity Act, which is now the law of that state jurisdiction. I offer that comment as a general statement indicating what a favorable environment Arizona is to interested practitioners, patients and providers. More specifically, there are four statutes governing your specific circumstances. This is actually a real and unusual benefit, having an entire statutory chapter devoted to the specific topic of telemedicine, as only a minority handful of states address the topic so directly and provide statutory guidance. Otherwise, in the majority of state jurisdictions, one is pretty much left to guess. If you click on each of the following links, you will be taken directly to the laws:


Ariz. Rev. Stat. Ann. § 36-3601


Ariz. Rev. Stat. Ann. § 36-3602


Ariz. Rev. Stat. Ann. § 36-3603


Ariz. Rev. Stat. Ann. § 36-3604


That is the first step, simply reading the law.
Next, read the official word promulgated by the Arizona Medical Board (it is labeled perhaps a bit off as "Internet Prescribing", but this is the current authoritative word on the topic of telemedicine):


Policy Statement


Finally, pose specific directions directly to the source:


Arizona Medical Board


That is it for the state law aspects of telemedicine, but you also astutely raise the issue of federal privacy law. One could devote literally months of years to reading the voluminous statutes, rules and regulations promulgated upon the Health Insurance Portability and Accountability Act of 1996, Pub.L. 104–191, 110 Stat. 1936. However, for some reasonably concise resources, I would love to point you toward the following item:


Telemedicine Office of the Future


This is a very nice PowerPoint presentation from a real world perspective. Plus, it is tailored to Arizona practice, which is very nice.


The crux of the matter is this. The law already sets forth the standards and expectations for the use, storage, dissemination, transmission, etc. of protected health information and has for many years. Nothing has changed in that regard, meaning there are no "special" or "unique" "telemedicine HIPAA laws". In other words, by compliant (just as one would for a traditional "brick and mortar" medical practice) and all will be well with a telemedicine center, too.


If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me. I will be sure to check back for any further word from you when I am again working online in this forum.

I truly hope all works out for you and that the information I have provided proves useful. Thanks so much for using this service!

Take care,

Ben, J.D., R.N.

Customer: replied 1 year ago.

Ben,


 


This information is helpful and I am thrilled with your background. I have read the Arizona Medical Board rules of prescribing online and in relation to telemedicine. This establishes that prescriptions should not be prescribed to patients that have not been set as established patients and thus may render the process of my business model as limited. Now, there are sites such as http://www.americanwell.com that currently offer services in the state of Arizona. They suggest and promote the idea of being able to prescribe medications for minor ailments over video conferencing. This, potentially, is in violation of the prescribing rules. Do these prescription rules apply also to nurse practitioners? If yes, I am assuming that they are functioning under some other law that would allow them to prescribe for certain conditions without a physical or "hands on" exam. Are there resources to this and what information ought I to seek out to determine those answers? I intend to initiate the venture with nurse practitioners and am not sure if this is what helps to navigate the practicing board.


 


Thanks so much.


Gloria

Expert:  LawHelpNow replied 1 year ago.
Hi Gloria,
Great to hear from you and thanks for writing back! You are quite welcome, my pleasure entirely!
You pose some logical follow-up questions. Here is how this all works together. First, as a preliminary matter, we can say that the same basic principles apply to any and all prescribers -- physicians, and mid-levels alike. No exemptions or special set of rules, in other words. So, the heart of that matter becomes just what are these requirements for lawful practice? Well, it essentially boils down to one salient point, as follows. Yes, there is a "face to face" requirement, but not necessarily a "hand to body" requirement. Put differently, the law now specifically allows for measures such as video conferencing technology to fulfill the "face to face" requirement (except for the one exception of procuring an abortion). Also, we are not talking about a "pill mill" here -- illegally "pushing" controlled substances in exchange for some quick cash. we are talking about bona fide medical encounters. Here are a couple of perfectly acceptable and lawful examples. Assume you are the provider and I am the patient. I have a weird looking "thing" on my arm. I hold it up to my video camera, you examine my skin, you diagnose ring worm, and you prescribe some cortisone cream. Or, I saw my personal physician "in person" and received my blood count results. My doctor was rushed and I feel like I did not receive an adequate explanation. I hold the paper up to my camera (or submit it to you via email or whatever other means), you review the results, and you further explain them to me. Or, I live in a remote area and have a stable (not life threatening to me or others) psychiatric need. I have no local access to mental health services, only primary care. We engage in an audio-visual interview, you formulate a diagnosis and treatment plan, and I follow your prescription. The latter example is being employed increasingly frequently with agencies such as the U.S. Department of Veterans Affairs. These are just examples off of the top of my head, but the botXXXXX XXXXXne is that the drafters of the legislation took care to make sure it explicitly allowed for telemedicine services to fulfill the requirements of the law.
Hope that helps some more...have a great weekend!
Kind regards,
Ben, J.D.
Customer: replied 1 year ago.

Ben,


 


That explanation is very helpful. Now as the medical board rules govern medicine, does the nursing board not govern midlevels differently? Just clarifying my understanding of such.


 


Now, I read the definition of telemedicine and prescribing rights as one that was only inclusive if you had previous care or "hands om" time for it to be telemedicine. As your scenario describes, this will not be required when run as a clinic format and descriptions of plans of care are appropriate and not merely drug mills?


 


Are there also currently any stipulations on requirements for policy and procedures, malpractice, etc? Additionally, are there any EHR requirements that will need to be addressed? We are considering creating a login based system that also allows stored video conference for provider and patient (their own of course) use. Are there any issues with that?


 


This has been very informative so far and I appreciate that.

Expert:  LawHelpNow replied 1 year ago.
Hi there Gloria,
It has been a pleasure interacting with you, and I am gratified to hear my assistance is proving helpful to you!
I will take your additional questions in the order presented.
"Now as the medical board rules govern medicine, does the nursing board not govern midlevels differently?"
Yes, you are indeed correct that the Arizona Board of Nursing oversees nurse practitioners. In terms of its approach, the answer is simple, albeit frustrating. Put simply, the Board is absolutely silent (to date) concerning the topic of telemedicine and nurse practitioners. So, it is not prohibited, yet it is not endorsed. Simply...silent. For your company, it would come down to a judgment call. Taking the most conservative approach, stick with only physicians. However, Arizona law is rather permissive in that nurse practitioners are not required to be supervised by a physician. In other words, compelling arguments can be made either way, and only you can decide your comfort level.
"As your scenario describes, this will not be required when run as a clinic format and descriptions of plans of care are appropriate and not merely drug mills?"
There are two requirements, as you mentioned, prior to prescribing medications specifically (i.e. not the case for a second opinion sort of scenario). These are a physical examination or a prior established provider-patient relationship. Put differently, having a prospective patient simply submit say a written questionnaire, and then writing a prescription, is not lawful (sometimes called, rather pejoratively, "Internet prescribing"). However, the requirement of a "physical examination" does not necessarily mean physically touching the examiner's hands to the patient's body. This is clear under Arizona law, and it allows for the valid and lawful operation of a proper telemedicine operation.
"Are there also currently any stipulations on requirements for policy and procedures, malpractice, etc?"
No.
"Additionally, are there any EHR requirements that will need to be addressed?" "Are there any issues with that?"
No. None beyond what we have already discussed: here
Thanks again for the opportunity to be of service to you!
Best regards,
Ben, J.D., R.N.
LawHelpNow, Attorney/Lawyer
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Customer: replied 1 year ago.

Ben,


 


I am not sure if this follow up question will go to you or not. Current Arizona law dictates or allows insurances to pay for rural telemedicine. If the model of my business venture is one of an "online clinic" - an online Minute Clinic of sorts, what are the insurance billing implications? As this is not directly a telemedicine, what are the steps to take to ensure insurance eligibility or ascertain coverage by Medicare / Medicaid? (Legalities or where to go to find answers...)


 


Thanks!


Gloria

Expert:  LawHelpNow replied 1 year ago.
Hi Gloria,
Nice to hear from you, and hope you are enjoying the weekend!
You are quite right about state law, namely the Telemedicine Reimbursement Parity Act. And regardless of exact format, as long as the statutory definition of telemedicine is met (which certainly would be the case based upon your description), the law applies. As for federal reimbursement, both Medicare and Medicaid now afford coverage. Your company would be best served by consulting with a billing specialist. Believe me, I speak from experience here, having served as General Counsel of a health care company. I thought I was well prepared with nursing and law degrees, but the finer points of billing codes in today's environment have made for a steel learning curve. Here are some good overviews:
Medicare

Medicaid
I have enjoyed dialogging with you, and I just want to let you know I will be unavailable much of this week due to other professional obligations. Please feel free to contact me again anytime, however, by posting any question here: LawHelpNow
Thanks again
Ben, J.D., R.N.
Customer: replied 1 year ago.

Ben,


 


Hope you had a great week! We are still moving forward. I have been contemplating on how to protect the company. As we hire health care providers on a contract basis and require them to hold their own malpractice insurance, how do we protect ourselves from being sued for liability of practice? We will also require a contract of HIPPA understanding and compliance. Do you know if it is possible to require them to be responsible if they are contracted employees? I have been wondering if we will be required to develop our own protocols for practice. My knowledge of medical negligence extends towards treatment plans consistent with an individual of the same background engaging in the same prudent plan. Are there situations where a suit can be directed at us in this situation?


 


Additionally, what are the odds that you are local to Arizona or Tucson? As we move forward, and as much as I truly love this service, I imagine we will need a local lawyer. If not, do you recommend a lawyer in these areas or how do find one? I have done quite a few searches for lawyers with these qualifications and find only medical malpractice lawyers and have been told they can't help with this type of project.


 


Because these practitioners are online and not physically in contact with the patients, will we still be required to hold employee health records for immunizations, etc?


 


I also keep getting investors telling me that they believe this type of business is illegal in our state. Do you have any suggestions on what I can say to clarify this better? I have tried discussion of what we have already discussed and often find I am met with more, "I'm still not so sure..." In fact, I had one investor tell me this was completely illegal and he worked in the medical field!


 


Thanks!


Gloria


 

Customer: replied 1 year ago.

Ben,


 


Had another thought! For medical billing, we use ICD-9 coding. If we are offering a beta service of a 20 minute consult with option to prescription for a straight fee (no insurance, no billing, etc) will we still need to report ICD-9 codes to someone or are those only required with Medicard/Insurance?


 


Thanks!

Expert:  LawHelpNow replied 1 year ago.

Hi there Gloria,


I hope this note finds you doing well!


You pose a number of excellent additional questions. I would be pleased to consider your logical points about retaining local counsel, managing legal liability, billing and so forth if you would post here: LawHelpNow


Doing so puts your question directly to my attention, and it would be an honor to be of service to you again.


Best regards XXXXX XXXXX thanks,


Ben, J.D., R.N.

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