Lessons from Vermont: How to Structure a Telemedicine Law to Benefit Patients and Providers

‘Patients First’ bill a beacon of hope to other waiting states

Vermont’s new telemedicine bill puts patients first. It doesn’t say as much, but its gracious allowances of telemedicine services and accommodations for patients’ medical, personal, and financial needs is encouraging.

The law, which takes effect on October 1, 2017, builds upon Vermont’s existing definition of telemedicine.

Telemedicine means the delivery of health care services such as diagnosis, consultation, or treatment through the use of live interactive audio and video over a secure connection that complies with the requirements of HIPAA. Telemedicine does not include the use of audio-only telephone, e-mail, or facsimile.

Vermont’s new law will use a broad definition of healthcare providers, and it includes “a person, partnership, or corporation, other than a facility or institution, that is licensed, certified, or otherwise authorized by law to provide professional health care services in this State to an individual during that individual’s medical care, treatment, or confinement.” Providers with prescribing abilities may, under the new law, issue prescriptions via telemedicine visits with no in-person exam requirement.  However, providers should remember that such encounters will be held to the same standard of care as in-person visits, so they should use their clinical judgment when determining if and when a patient should be seen in-person prior to the issuance of a prescription.

Under existing law. Vermont Medicaid and commercial insurers were required to cover telemedicine services if the patient was located at a healthcare facility when receiving the services. The new law changes this, requiring all Vermont insurers to cover telemedicine services if (1) the services would be covered if rendered through an in-person visit, and (2) the patient is located at an originating site. It defines an originating site as:

Originating site means the location of the patient, whether or not accompanied by a health care provider, at the time services are provided by a health care provider through telemedicine, including a health care provider’s office, a hospital, or a health care facility, or the patient’s home or another nonmedical environment such as a school-based health center, a university-based health center, or the patient’s workplace.

Providers are no longer required to document the reason that the services are being provided via telemedicine instead of through an in-person visit. Health insurers may, however, impose in-network provider restrictions upon patients, just as they would for in-person visits.

The flexibility of Vermont’s law does create potential legal challenges, so providers bound by similar laws should reflect frequently upon their telemedicine practices and the changing legal landscape in their state.  For example, providers must obtain specific informed consent from their patients for telemedicine services.  Providers are also prohibited from recording telemedicine patient visits, and they must ensure that the internet connection being used during their visit is secure and HIPAA-compliant. Finally, providers should remember that this does not necessarily allow them to treat patients outside of their state, and they remain subject to the laws and regulations governing their profession.

We frequently field questions about how providers can integrate telemedicine into their practice. If you’re interested in exploring this popular-with-patients option, reach out to us.

As always, this post does not constitute legal advice and does not create an attorney-client relationship. This post also discusses a legal change in Vermont, where Jackson LLP’s attorneys are not licensed to practice, for educational and illustrative purposes only. No action should be taken upon the discussion presented in this blog. Instead, hire an attorney who can provide you with personalized guidance.

Further reading:

18 V.S.A. § 9402, Quality, Resource Allocation, and Cost Containment: Definitions
8 V.S.A. § 4100k, Coverage of Telemedicine services
Vermont Senate Bill 50: An act relating to insurance coverage for telemedicine services delivered in or outside a health care facility

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