Presented at the Massachusetts Bar Association Annual Health Law Symposium (May 20, 2016)

1. Telemedicine: Challenges
and Opportunities
David Harlow JD MPH
THE HARLOW GROUP LLC
blog • healthblawg.com
twitter • @healthblawg
Health Law Symposium
Boston
May 20, 2016

4. Dynamic Tension
One foot in the past,
one foot in the future.

5. Cost & Quality

6. Telemedicine Modalities
Synchronous Asynchronous
Remote
Monitoring
Mobile Health

7. Live Video (Synchronous)

8. Market Driven

9. Health Insurance Exchange -
Network Adequacy
• Colorado to recognize telemedicine
providers for network adequacy
requirements for some specialties
(2017)
• Seems to be isolated instance thus far,
even though NAIC has built
telemedicine providers into its model
approach to assessing network
adequacy
• Urban Institute report

10. Employee Benefits > Medicare > Medicaid
Employee
Health
Benefit
Medicare
Medicaid
2016
expansion
50-State Coverage & Reimbursement

11. Limited by
State Medical
Boards

12. Interstate
Medical
Licensure
Compact
licenseportability.org

13. Can practice limits imposed
by a medical board be an
antitrust violation?

14. North Carolina –
Teeth Whitening
Imagecredit:msgolightlyviaFlickrCC

15. The Supremes said:
“a state board on which a controlling number of
decisionmakers are active market participants in the
occupation the board regulates” may invoke the state action
defense only when two requirements are satisfied: first, the
challenged restraint must be clearly articulated and
affirmatively expressed as state policy; and second, the
policy must be actively supervised by a state official (or state
agency) that is not a participant in the market that is being
regulated. N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct.
1101, 1114 (2015).

16. FTC Guidance (October 2015)

17. Texas – Board Bars Prescription
Without F2F Encounter & Teladoc Sues
• This fight has dragged on for five years already …
• Initial bar: By letter … Eventually: By regulation
• Teladoc won in US District Court, Texas Medical
Board appealed to 5th Circuit Court of Appeals

18. Bringing up the rear …
• Indiana’s F2F rule for Rx
writing has been
eliminated (except for
controlled substances)
effective July 1, 2016.
• Alaska, Arkansas & Texas
still require F2F visit to
establish physician-patient
relationship

19. Massachusetts
• Prescribing physician must have physician-
patient relationship
• Rule arose in context of online
pharmacies
• State licensure required (not part of
compact)

20. Expanding into chronic and behavioral health

21. Asynchronous (Store & Forward)

22. Services that are not
“health care services”
but rather
“informational”
services

25. Remote Monitoring

26. Mobile Health (Apps)

29. Link to recent
reports
& discussion
Data privacy and security issues

30. Progress . . .

31. for contact info
txt dharlow to 50500
or scan the QR code
harlowgroup.net
healthblawg.com
twitter.com/healthblawg
david@harlowgroup.net
Thank You
David Harlow JD MPH
THE HARLOW GROUP LLC