Top 5 Takeaways from New Michigan Telehealth Law

27 December 2016 Health Care Law Today Blog
Author(s): Nathaniel M. Lacktman

Michigan is ringing in 2017 with a new telehealth law. Governor Rick Snyder signed into law SB 0753 on December 21, 2016, imposing new telehealth practice standards, including restrictions on prescribing controlled substances via telemedicine. The new Michigan telemedicine law will take effect March 21, 2017 (a 90-day delay from signature to effective date).  Previously, Michigan law and regulation was silent on delivering health care services via telehealth and virtual care technologies.  The law applies broadly, not just to physicians, but to all health professionals in Michigan.

The law was not universally supported, even among pro-telehealth proponents, as they pointed out that telehealth-based care “has already been thriving in Michigan without legislation.” Indeed, despite the best intentions, providers and entrepreneurs are already seeing how artificial restrictions in state law telehealth practice standards can actually limit innovation in health care delivery, rather than foster its growth.  States without telehealth practice standards can (and do) still regulate health care delivery by requiring all services – whether in-person or via telemedicine – to meet the same standard of care.  That said, Michigan’s telemedicine law is succinct, not overly burdensome, and generally follows the playbook of some common practice standards seen in a number of other states.

Here is a summary of the law’s key provisions:

  1. Telehealth” is defined as the use of electronic information and telecommunication technologies to support or promote long-distance clinical health care, patient and professional health-related education, public health, or health administration. Telehealth may include, but is not limited to, telemedicine. A “telehealth service” means a health care service that is provided through telehealth.  Note, the technology/modality definition of “telehealth” is broader than that of “telemedicine” (the latter requiring real-time, interactive audio or video, or both).
  2. Telemedicine” is defined as the use of an electronic media to link patients with health care professionals in different locations. The health care professional must be able to examine the patient via a real-time, interactive audio or video, or both, telecommunications system and the patient must be able to interact with the off-site health care professional at the time the services are provided.  (This is the same definition used in Michigan’s telemedicine commercial insurance coverage law).
  3. In-Person Exam. To its credit, the law does not state that an in-person examination is required before delivering telehealth services.  And yet, the law does not expressly and affirmatively state a provider may establish a valid doctor-patient relationship via telehealth without an in-person exam.  While such a permissive statement is not required, providers could have benefitted from the Legislature’s explicit confirmation of telehealth in this context, as the State elected to pass a statute anyway.  The Michigan Department of Licensing and Regulatory Affairs, in consultation with its respective professional licensing boards, may promulgate rules under the law. If the Department does issue telehealth rules, it would be reasonable to include such an affirmative statement about creating a valid provider-patient relationship via telehealth without an in-person exam, thereby giving Michigan professionals more clarity and confidence when delivering telehealth services.
  4. Consent to Telehealth. A provider must obtain, directly or indirectly, patient consent for treatment before providing telehealth services. (Such consent is not required for telehealth services to inmates at correctional facilities.)
  5. Remote Prescribing. Physician prescribers may remotely prescribe medications via telehealth, except for controlled substances. Michigan now joins the minority of states that per se prohibit telemedicine prescribing of controlled substances.  This will be disappointing news for a number of telemedicine providers, as controlled substances are an important and clinically significant component of certain specialties, such as telepsychiatry and hospitalists/emergency medicine.  Florida, for example, previously had a blanket prohibition on telemedicine prescribing of controlled substances until a provider’s multi-year telepsychiatry demonstration (under a rule waiver) showed how effective and safe the practice can be.  This led the Florida Board of Medicine to amend its prohibition and permit telemedicine prescribing of controlled substances for the treatment of psychiatric disorders. Similarly, Florida now allows ordering controlled substances via telemedicine for hospital inpatients.  We may hopefully see that change in Michigan, to accommodate these clinically-appropriate uses.

Curiously, the law contains a sentence expressly reiterating that it does not “require new or additional third party reimbursement for health care services rendered by a health professional through telehealth.” This language is atypical for most state telehealth practice statutes or regulations, as professional healthcare standards of practice are generally a separate and distinct issue from telehealth insurance coverage and payment parity laws.  Michigan already has arguably one of the weakest, provider-unfriendly, telehealth commercial insurance coverage laws in the nation.  The statute (from 2012) reads, in pertinent part:

An insurer that delivers, issues for delivery, or renews in this state a health insurance policy shall not require face-to-face contact between a health care professional and a patient for services appropriately provided through telemedicine, as determined by the insurer. […]  Telemedicine services are subject to all terms and conditions of the health insurance policy agreed upon between the policy holder and the insurer, including, but not limited to, required copayments, coinsurances, deductibles, and approved amounts.

The Michigan statute affords great discretion to the insurer to determine what telemedicine services (if any) are covered and what the payment rate would be for those services. At the other end of the spectrum are telehealth coverage laws in states like Mississippi or Delaware, which make clear that health plans must allow their members/enrollees/policyholders the meaningful option to receive medical services via telemedicine or in-person. Currently, 31 states plus the District of Columbia have telehealth commercial insurance laws, although there are significant variances among these laws and oftentimes the statutory language does not actually deliver what health care providers expect or hope.  Telehealth commercial insurance coverage and payment parity is an important issue for providers, and is gaining increased attention and interest across the country. For example, New York is still grappling with the unintended consequences of recently enacting a telehealth coverage law without a payment parity provision. Continued expansion in coverage and reimbursement means providers can enhance telehealth offerings, both for the immediate cost savings and growing opportunities for revenue generation, to say nothing of patient quality and satisfaction.

For more information on telemedicine, telehealth, virtual care, and other health innovations, including the team, publications, and other materials, visit Foley’s Telemedicine and Virtual Care Practice.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.