Editor’s intro: The increase in telemedicine services to patients in the dental sleep area comes with many results — improved patient access and quality of health care, but also additional pitfalls and liability for the provider. Jayme R. Matchinski, Esq., informs our readers of telemedicine laws, limits, and regulations.
The expansion of telemedicine is changing the landscape of providing Dental Sleep Medicine and oral appliances. This article will address key issues and regulations dentists and dental practices should consider and navigate in order to avoid potential pitfalls and liability.
Dentists and patients are relying more heavily on telemedicine for the provision of Dental Sleep Medicine. Advances in technology and health care delivery systems such as telemedicine are improving patient access and the quality of health care. The use of cone beam technology and 3D images is also changing how patient care is provided by dentists and dental practices. As the use of telemedicine continues to expand, dentists and third-party payors need to ensure regulatory compliance and navigate the related risks in implementing telemedicine practices and programs.
Telemedicine Laws and Regulations
Proposed laws and rules related to telemedicine will continue to expand coverage, and many national insurance companies have implemented online medicine by adding access to approved telemedicine networks for their insureds. The provision of online medicine and related telemedicine services by dentists, for the most part, is subject to the same regulatory and liability issues as “brick and mortar” providers. Issues regarding across-state-line care, HIPAA violations, kickbacks, and inappropriate prescribing for drugs, medical devices, and durable medical equipment (DME) are all key considerations for dentists who decide to provide telemedicine services.
The terms telehealth and telemedicine are sometimes used interchangeably. The Health Resources & Services Administration (HRSA) of the U.S. Department of Health and Human Services defines telehealth as: “the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, public health, and health administration.” (http://www.hrsa.gov/rural-health/telehealth/index.html). The HRSA distinguishes telehealth from telemedicine in its scope. According the HRSA, telemedicine describes remote clinical services such as diagnosis and monitoring, while telehealth includes preventive, promotive, and curative delivery. (http://www.hrsa.gov/rural-health/telehealth/index.html). Most state regulations use and reference “telemedicine” to define the scope of practice, licensure, and reimbursement for remote clinical services, including diagnosis and monitoring.
Dentists entering into agreements for the provision of online health care should be aware of the regulatory and liability risks associated with telemedicine to address the patient consent, fraud and abuse, licensing and HIPAA hurdles. Key issues that dentists should consider when entering into agreements for telemedicine and the provision of Dental Sleep Medicine include:
- What are the appropriate billing codes?
- Did the dentist, as the provider of Dental Sleep Medicine and the oral appliance, satisfy the applicable regulatory requirements?
- Were the applicable geographic location requirements met?
- Was the patient at the appropriate originating site?
- Did the technology meet the audio and visual requirements?
- Subsequent to the initial 90 day period following the oral appliance delivery, will the payor reimburse the dentist who conducts a telemedicine E&M consult?
- Were any non-covered services billed?
State Telemedicine Regulations
Telemedicine regulations vary from state to state. Many “parity” states have updated or adopted new state law to require private insurers to cover services provided through telemedicine if the same services provided in-person are covered and reimbursed by the insurance companies. State laws governing telemedicine will continue to expand and evolve as technology impacts access to health care and the provision of patient care.
Currently, there are no uniform telemedicine regulations other than the Medicare and Medicaid coverage guidelines and regulations. Statutes or regulations have been promulgated and enforced on a state, not federal, level due to scope of licensure and reimbursement considerations. Each state must regulate telehealth issues related to: establishing the physician/patient relationship, patient consent and disclosures, scope of practice, licensure, recordkeeping and information access, clinical standards, payment practices, coordination of care, and prescription standards.
Medicare Coverage for Telehealth has Expanded but There Are Limits
Before 2015, Medicare did not pay separately for telehealth, and telehealth and telemedicine services were bundled into “evaluation and management” codes. However, in 2015, the Center for Medicare & Medicaid Services (CMS) added further telehealth coverage. CMS has added seven telehealth billing codes, including codes for psychotherapy, prolonged office visits and annual wellness visits conducted electronically. CMS also began paying for remote patient monitoring for chronic conditions.
CMS has reimbursed providers for remote patient face-to-face services via live video conferencing requirements when the eligible beneficiary in the originating site is located outside of a Metropolitan Statistical Area (MSA) for eligible medical services, and the telehealth is provided by eligible providers and by an eligible facility. If these requirements are met, the practitioner delivering services will be reimbursed for medical services in the same amount as the current fee schedule and nonmetro facility eligible for facility fee. However, Medicare reimbursement for telehealth continues to be available only at clinical sites in rural areas. CMS restricts telehealth services to beneficiaries that live in counties outside of a MSA and within a health professional shortage area (HPSA) as designated by the federal government.
Medicare does not reimburse for remote non-face-to-face services, as such services are not considered to be telehealth by CMS and are covered as on-site services. An example of remote non-face-to-face services is an interpretation of an electrocardiogram that has been transmitted via telephone.
Telemedicine Providers should Be Aware of Medicaid Payments Review
Medicaid programs pay for telemedicine, telehealth, and telemonitoring services delivered through a range of interactive video, audio or data transmission (telecommunications).
The Medicaid Services Delivered Using Telecommunication Systems project was initiated by the Office of Inspector General (OIG) and included in the OIG’s November 2017 Work Plan update. The OIG notes the “significant increase in [Medicaid] claims for telehealth, telemedicine and telemonitoring services” and indicates that the OIG expects the trend to continue.
Compliance with the Medicaid requirements that apply to telehealth differs from state to state. The coverage, coding, and documentation rules are not necessarily easy to find. Most telehealth requirements are found in policy manuals and transmittals rather than in regulations. Medicaid providers should continue to monitor the OIG’s Medicaid Services Delivered Using Telecommunication Systems for updates. The OIG is expected to issue a report on the project in 2019 to provide further guidance on Medicaid requirements and reimbursement for telehealth providers.
Exploring the Range of Telemedicine Models and Provider Arrangements
There are many business models and provider arrangements for the provision of telemedicine. Given the regulatory climate and increasing use of telemedicine by dentists and patients, these business models and provider arrangements are continuing to change.
Dentists should think about how telemedicine is provided pursuant to the model and provider arrangements to ensure regulatory compliance, proper documentation, and the ability to receive reimbursement for the provision of telemedicine. The following are a few examples of telemedicine models and provider arrangements utilized by dentists and patients:
Online patient access/portals/technical support
A sleep disorder center provides patients with online access to view results from the polysomnography (sleep study) and offers patients options regarding the treatment of sleep disorders, including Dental Sleep Medicine and oral appliances.
eHealth, mHealth, and medical apps
Self-tracking apps for diagnostics, care support, and monitoring that may include weight loss, smoking cessation, medication compliance, and oral appliance compliance.
Dentists should carefully consider and monitor the structure of business models and provider arrangements so that there is proper documentation of the provision of the telemedicine and receipt of the correct reimbursement. Dentists and dental practices should consider the following issues which are related to the provision of telemedicine:
- Business terms and transactional considerations, including compensation;
- Intellectual Property;
- FDA complianace;
- Data Access;
- Scope of Practice and Licensure;
- Patient Privacy and Information Security;
- Fraud and Abuse Concerns;
- Cybersecurity Insurance;
- Reimbursement; and
- Regulatory Compliance, including HIPAA and State Privacy Regulations.
Dentists who provide telemedicine are subject to licensure regulations in the state(s) where the dentists are located and licensed and the state in which the patient is physically located at the time of the consult. Depending upon the technology platform and the professional services being provided, the provision of telemedicine could result in a dentist practicing Dental Sleep Medicine in all fifty states. Regarding dental practice licensure and related rules, it is generally accepted that the law that governs the consult is the law from the state where the patient is located at the time of the consult.
Some states specifically address these issues in the state law or related guidance, while some states indirectly address the practice rules by including diagnosing and rendering treatment through electronic or other means as part of the practice of medicine; other states are silent. Some states allow an unlicensed dentist to practice dentistry in peer-to-peer consultation with a dentist licensed in the state, and the local dentist who is licensed in the state retains the ultimate authority over treatment and diagnosis. Other exceptions for unlicensed dentists include: bordering state licensure, endorsement, special telemedicine licenses, and follow-up care. Given scope of practice, licensure, state board disciplinary actions, and malpractice considerations, dentists should carefully navigate the provision of professional services through telemedicine and ensure regulatory compliance to avoid licensure and state board disciplinary actions.
As telemedicine continues to grow, dentists and patients will need to navigate telemedicine requirements for licensing, scope of practice and reimbursement. Rapid changes in technology, Dental Sleep Medicine, and health care delivery systems will continue to allow dentists, patients, and other health care providers to increase their use of telemedicine. While there are many opportunities for dentists to implement and use telemedicine, dentists must continue to closely monitor the changing regulatory landscape to ensure compliance, receive reimbursement, and avoid potential pitfalls and exposure to liability.