The purpose of this position statement is to offer recommendations for the appropriate practice and use of telemedicine in New York State by licensed health care practitioners.

POSITION

• The New York State Nurses Association (NYSNA) supports the use of telemedicine as one method of health care delivery that may enhance patient–practitioner collaborations, improve health outcomes, increase access to care and members of a patient's health care team, and reduce medical costs when appropriately used as a component of a patient's care;

• Telemedicine is a reasonable alternative for patients who lack regular access to relevant medical expertise in their geographic area.

• Episodic, direct-to-patient telemedicine services should be used only as an intermittent alternative to a patient's primary care practitioners when necessary to meet the patient's immediate acute care needs.

• A valid patient–practitioner relationship must be established for a professionally responsible telemedicine service to take place.

• Employers and practitioners should not compromise their ethical obligation to deliver in-person, clinically appropriate care for the sake of new technology adoption and/or for the sole purpose of saving health care costs.

• Telemedicine services must be secure and compliant with federal and state security and privacy regulations. 

• The standards of practice for telemedicine should be the same standards of practice as if the practitioner were seeing the patient in person.

• Telemedicine should not be practiced across state lines.

BACKGROUND

In today’s health care environment, there are a variety of different settings where the combination of health and technology is applied. Hospitals were one of the early adopters of telehealth technology and have since created subcategories of the field, including tele-stroke, tele-ICU, and tele-behavioral health.

The World Health Organization (WHO) defines telemedicine as:

 The delivery of healthcare services, where distance is a critical factor,

 by all healthcare professionals using information and communication

 technologies for the exchange of valid information for diagnosis,

 treatment and prevention of disease and injuries, research and  

 evaluation, and for the continuing education of healthcare providers,

 all in the interests of advancing the health of individuals and their

 communities. (WHO, 2010, p. 9)

In February 2018, the Centers for Medicare Services (CMS) declared that Medicare beneficiaries are eligible for telehealth services only if they are presented from an originating site located in (1) a county outside of a Metropolitan Statistical Area (MSA), or (2) a rural Health Professional Shortage Area (HPSA) located in a rural census tract.  Additionally, the CMS declared that originating sites of telehealth for reimbursement purposes include:

•   The offices of physicians or practitioners
•   Hospitals
•   Critical Access Hospitals (CAHs)
•   Rural Health Clinics
•   Federally Qualified Health Centers
•   Hospital-based or CAH-based Renal Dialysis Centers (including satellites)
•   Skilled Nursing Facilities (SNFs) and
•   Community Mental Health Centers (CMHCs)

Practitioners at the distant site who may furnish and receive payment for covered telehealth service (subject to State law) are:

•   Physicians.
•   Nurse practitioners (NPs).
•   Physician assistants (PAs).
•   Nurse-midwives.
•   Clinical nurse specialists (CNSs).
•   Certified registered nurse anesthetists.
•   Clinical psychologists (CPs) and clinical social workers (CSWs). CPs and CSWs cannot bill for psychiatric diagnostic interview examinations with medical services or medical evaluation and management services under Medicare. These practitioners may not bill or receive payment for Current Procedural Terminology (CPT) codes 90792, 90833, 90836, and 90838.
•   Registered dietitians or nutrition professionals.

While the use of telehealth and telemedicine may be appropriate in certain circumstances, the potential benefits of telemedicine must be measured against the risks and challenges associated with its use, including the absence of the physical examination, variation in state practice and licensing regulations, state malpractice laws, and issues surrounding informed consent and the establishment of the patient–practitioner relationship.

Telemedicine can aid communities traditionally underserved – those in remote or rural areas with few health services and staff –because it overcomes distance and time barriers between health-care providers and patients.  While the use of telemedicine technologies began mainly in rural communities and federal health programs, they have since been used in various medical specialties and subspecialties across care settings. Only since the broad proliferation of computer and smartphone technology into the everyday lives of the general population has telemedicine taken a foothold in how health care is being delivered to larger groups of patients.

Despite its promise, telemedicine applications have achieved varying levels of success.  Several routinely cited challenges account for the lack of longevity in many telemedicine endeavours (WHO, 2010):

• Some patients resist adopting service models that differ from traditional approaches or indigenous practices;
• Some patients lack ICT literacy to use telemedicine approaches effectively;
• There are linguistic and cultural differences between patients (particularly those underserved) and service providers;
• There is a shortage of studies documenting economic benefits and cost-effectiveness of telemedicine;
• Lack of a legal framework to allow health professionals to deliver services in different jurisdictions;
• The risk of medical liability for the health professionals offering telemedicine services;
• Lack of policies that govern patient privacy and confidentiality visà-vis data transfer, storage, and sharing between health professionals and jurisdictions;

• Risks associated with health professional authentication, in particular with e-mail applications.

Nursing practice occurs at the point that a nurse utilizes the knowledge, skill, judgment and critical thinking that is inherent in nursing education and that is authorized through the nursing license (Hutcherson, 2001). A regulatory dilemma with the use of telemedicine is whether jurisdiction over telemedicine/telehealth will remain in the domain of traditional State’s Rights provisions (as is most traditional health care) with the issues being resolved by the states, or whether the practice will be deemed as interstate commerce.  As described in the U.S. Constitution, interstate commerce is seen as provision of goods and services across state lines and is within the jurisdiction of the federal government. 

Another legal question impacts on the use of telemedicine. With the emergence of this technology, there is no clear law or body of knowledge to resolve the question of "where does care occur" when the patient and the provider are in different geographical locations. Is the care legally provided at the location of the patient or at the location of the provider?  What about the location of the nurse? If care occurs at the location of the patient, is the nurse practicing telenursing expected to obtain a nursing license in every state where there might be electronic contact with a patient? If care is determined to occur at the location of the provider and/or nurse, how does the patient know where and how to seek recourse in the event of substandard care or malpractice?

CONCLUSION

 While telehealth holds tremendous possibilities as an adjunct to care, especially for those in geographically remote areas, its use should be limited until legal and regulatory issues related to telemedicine/telehealth have been resolved.

RECOMMENDATIONS

• Telemedicine/telehealth is one method of health care delivery that may enhance patient–practitioner collaborations, improve health outcomes, increase access to care and members of a patient's health care team, and reduce medical costs when appropriately used as a component of a patient's care;

• Telemedicine/telehealth is a reasonable alternative for patients who lack regular access to relevant medical expertise in their geographic area.

• Episodic, direct-to-patient telemedicine/telehealth services should be used only as an

intermittent alternative to a patient's primary care practitioners when necessary to meet the patient's immediate acute care needs.

• A valid patient–practitioner relationship must be established before a telemedicine/telehealth service takes place.

• Employers and practitioners should not compromise their ethical obligation to

deliver in-person, clinically appropriate care for the sake of new technology

adoption and/or for the sole purpose of saving health care costs.

• Telemedicine/telehealth services must be secure and compliant with federal and state

security and privacy regulations.

• The standards of practice for telemedicine/telehealth should be the same standards of

practice as if the practitioner were seeing the patient in person.

• Telemedicine/telehealth should not be practiced across state lines.

• The use of telemedicine/telehealth should be limited until legal and regulatory issues related to its use have been resolved.

March 8, 2018

           REFERENCES

Centers for Medicare & Medicaid Services. (February 2018). MLN Booklet: Telehealth Services.

Retrieved March 8, 2018 from:

https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/TelehealthSrvcsfctsht.pdf.

Hutcherson, Carolyn M. (September 30, 2001). "Legal Considerations for Nurses Practicing in a

Telehealth Setting". Online Journal of Issues in Nursing. Vol. 6 No. 3, Manuscript 3. Retrieved March 8, 2018 from : www.nursingworld.org/MainMenuCategories/ANAMarketplace/ANAPeriodicals/OJIN/TableofContents/Volume62001/No3Sept01/LegalConsiderations.aspx.   

World Health Organization. (2010). TELEMEDICINE: Opportunities and Developments

in Member States. Retrieved March 8, 2018 from http://www.who.int/goe/publications/goe_telemedicine_2010.pdf