Telemedicine In Illinois – Licensing and Insurance Laws Post-Pandemic
Even before the pandemic, patient demand had increased for more convenient delivery of health care. Providers and patients alike realized that technology had expanded the opportunity for health care to be accomplished virtually, and thus, “telehealth” was born.
Although the law typically lags behind innovative technology, the pandemic and its shutdown exploded not only the interest in but the urgent necessity for remote health care services. In 2020 when the pandemic was initially declared. Governor Pritzker issued an Executive Order requiring health plans to cover and reimburse for telehealth services at the same rate as for in-person services. The critical need to provide non-contact health services during the shutdown also spurred lawmakers to quickly fine-tune existing telehealth law regarding virtual visit requirements, licensing, and insurance coverage. These laws now remain in place post-pandemic, and it appears that telehealth is here to stay.
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DEFINITIONS: TELEHEALTH AND TELEMEDICINE
Telehealth and telemedicine both refer to a licensed professional engaging in electronically transmitted health care communication, evaluation, diagnosis, or treatment of a patient in a different location. “Telemedicine” is a subset of telehealth that applies specifically to physicians, including doctors of chiropractic, who provide care to Illinois patients. (Note that not all acts that meet the definition are covered by health insurance. See the Section below “Insurance Billing and Telehealth.”)
The Medical Practice Act defines telemedicine as the performing of diagnosis or treatment (or formulation of treatment plan) of a patient in Illinois by a person in a different location than the patient via transmission of patient data by telephonic, electronic, or other means of communication.
“Telemedicine” does not include (and does not require Illinois licensure for) the following:
(1) periodic consultations between a person licensed under the Illinois Medical Practice Act and a person outside the State of Illinois;
(2) a second opinion provided to a person licensed under the Medical Practice Act;
(3) diagnosis or treatment services provided to a patient in Illinois following care or treatment originally provided to the patient in the state in which the provider is licensed to practice medicine; and
(4) health care services provided to an existing patient while the person licensed under this Act or patient is traveling.
Some services are, of course, better suited than others for this type of health care delivery.
The ICS notes that “telemedicine” also includes services provided electronically by physicians licensed in other states to patients located in Illinois. (For information concerning those issues, including the referral by Illinois licensed physicians of radiological studies to out-of-state doctors and the potential for the referring Illinois doctor to be charged with aiding and abetting the unlicensed practice of medicine, see OUT-OF-STATE RADIOLOGY SERVICES.) However, the focus of this article is on Illinois licensed physicians providing professional health care services by telemedicine to patients who are located in and outside of Illinois.
THE LAW OF THE STATE WHERE THE PATIENT IS LOCATED CONTROLS THE REGULATION OF PHYSICIANS AND TELEMEDICINE
Each state has its own law regarding physician licensure and other requirements for the practice of telemedicine. State regulators consider the practice to occur where the patient is located. For an Illinois physician who wants to determine whether he or she may provide telemedicine services to any patient, the first question is where the patient is located because the law of the state where the patient is located will control. Engaging in telemedicine with patients via electronic devices and reaching patients in multiple states (or even out of the country) is the equivalent of practicing in each state where patients are sitting at their devices.
Therefore, an Illinois doctor who uses electronic means to diagnose or treat patients in other states must comply with each distinct law in each state where a patient is located. States range from having no telemedicine law at all to requiring full licensure to practice telemedicine. The complexity of learning and complying with 50 different laws is obvious.
DETERMINE PATIENT LOCATION
First, many states, including Illinois, do not permit any type of medical practice on patients located in their state unless the physician is fully licensed in that state. For Illinois licensed physicians who want to practice telemedicine on patients in other states, the physician will need to determine the location of each patient and will need to fully comply with that state’s law before establishing a physician-patient relationship. In some states the physician may need some kind of limited license; in many states, compliance will require full licensure.
Additionally, even in states that permit telemedicine by remote physicians, the physician will still have to comply with the appropriate standard of care for the services being provided. Eventually, the court cases and laws will catch up and provide more guidance, but, at this time, telemedicine is still a new and evolving delivery system that could not have been imagined at the time the laws were written. Laws have not yet been fully tested, nor have many court opinions been issued to clarify questions about this new form of health care delivery. At this time, regulators must rely on expert opinion as to whether varying forms of health care meet the standard of care when rendered via telemedicine. For example, practitioners of psychological counseling may be easily able to meet their standard of care in a video session with a patient; however, it is not as clear for a physician presented with a patient complaining of a physical pain, because an expert might say the standard of care requires a hands-on physical exam.
Finally, even with a license for various states, the chiropractic scope of practice varies. Chiropractic physicians would have to check the scope for each state in which a patient is located. Clearly, the cumbersome nature of operating under these variances in laws would make a practice across multiple state lines impractical at best, and probably economically unsustainable.
ILLINOIS PHYSICIANS AND IN-STATE INTERNET PRACTICE
How can Illinois physicians use the Internet in their practices? Clearly, they may communicate with established Illinois patients using messaging via secure patient portals, as these communications would be similar to those contained in telephone calls. Many Illinois practices currently use sophisticated health care portal programs that permit patients to directly access their records, schedule appointments, pre-register for visits, and message with their doctors regarding medical care. In these situations, the Internet is used as an adjunct to, rather than a substitute for, traditional, in-person care. The physician is not operating in a vacuum, having the benefit of the patient’s history and a prior physical exam. Similarly, the law clearly also permits Illinois licensed physicians to video conference with their established patients in Illinois.
However, we do not yet know how regulators view Internet practice involving patients with whom the doctor does not have an established physician-patient relationship, even if the patient resides in Illinois. The ICS is aware that a number of health plans and health facilities (such as hospitals) operate call-in centers where nurses speak with individuals generally regarding a health care issue, or “screen” for suspected issues, and then recommend or refer the individual to a physician for additional evaluation. The nurse is presumably not diagnosing or treating the individual in those cases.
RED FLAGS
The ICS speculates that regulators would also permit a licensed physician to work in a call-in center to provide general information or “screen patients” for suspected conditions that may require follow-up care. However, if the physician then crosses the line into actual diagnosis and treatment, regulators might view that conduct differently. The problem, in this case, would not be the medium of the Internet, but rather that standard of care does not permit rendering medical advice to strangers and may not permit diagnosing and treating without an in-person encounter in certain circumstances. Physicians have argued that they would be able to take a history online and conceivably treat a patient appropriately based on his or her history, but the law is still grappling with this new form of patient encounter. At this time, the law does not appear ready to accept anything less than the usual standard of care for any form of telemedicine at this time.
Regardless of whether you use technology to communicate with existing patients or with new patients, the ICS recommends you check with your professional liability insurer to determine whether you are covered for those activities. No policy will cover you for activities that are considered the unlicensed practice of medicine. You should also confirm whether you are covered, even if you are properly licensed in Illinois or elsewhere for the telemedicine practice you conduct.
INSURANCE BILLING AND TELEHEALTH
Insurance coverage is a separate consideration from legal authority required to render telehealth services. During the pandemic, the Illinois legislature passed a law that requires individual and group policies issued after July 2021 to cover medically necessary live video telehealth services in the same manner, and at the same reimbursement rate, that would apply to the services if the services had been delivered in person by a network provider. The ICS interprets this law (under the Illinois Insurance Code) to apply also to employer-sponsored plans that are administered by Illinois licensed third-party administrators. . Nonetheless, some telehealth services that are allowed by law may not be billable to a health plan. Many payers follow the CMS rule of covering only live video encounters; typically, audio-only and written interactions (such as e-mail messages, faxes, or audio phone consultations) are not reimbursable. For an excellent article on telehealth billing, see “Billing for Telemedicine in Chiropractic,” by Evan M. Gwilliam, DC.
Although the law always lags behind technology, there is no doubt that telemedicine has the potential to increase access to patient care. Due to the variations in state laws, the federal government ultimately may have to take over areas that were historically left to the states, in order to promote uniformity and make it possible for more patients to avail themselves of the care of more practitioners. In the meantime, the ICS will continue to be your accurate source of information in this rapidly changing environment.
