On December 21, 2016, Governor Rick Snyder signed Senate Bill 753 into law, which, among other things, 1) requires health professionals engaging in telehealth services in Michigan to obtain patient consent prior to performing telehealth services; and 2) prohibits health professionals engaging in telehealth services in Michigan from prescribing controlled substances. In total, Senate Bill 753 adds six (6) new sections—codified as MCL 333.16283 through MCL 333.16288—into Michigan’s public health code (the “Telehealth Law”). Michigan’s Telehealth Law will become effective on March 29, 2017.
Specifically, the Telehealth Law provides several notable definitions, additions and changes to Michigan law, which are detailed below for ease of review and analysis:
1. Who is Considered a Health Professional? A health professional refers to an individual who engages in the practice of a health profession. Based on the foregoing definition, the Telehealth Law applies to all health professionals—it is not limited to physicians.
2. Who is Considered a Prescriber? A Prescriber is defined under the public health code as a “licensed dentist, a licensed doctor of medicine, a licensed doctor of osteopathic medicine and surgery, a licensed doctor of podiatric medicine and surgery, a licensed optometrist certified under part 174 to administer and prescribe therapeutic pharmaceutical agents, a licensed veterinarian, or another licensed health professional acting under the delegation and using, recording, or otherwise indicating the name of the delegating licensed doctor of medicine or licensed doctor of osteopathic medicine and surgery.”
3. What is Telehealth? The Telehealth Law adds a new definition for telehealth that means “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.” The foregoing definition is quite broad.
4. What is Telemedicine? The Telehealth Law incorporates the Telemedicine definition from Michigan’s insurance code, which defines telemedicine as “the use of an electronic media to link patients with health care professionals in different locations. To be considered telemedicine under this section, 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.”
5. What is a Telehealth Service? A telehealth services means a “health care service that is provided through telehealth.”
6. Requirement to Obtain Informed Consent. One of the major changes contained within the Telehealth Law (in Section 16284) is the new requirement for health professionals to obtain consent for treatment via telehealth services. Specifically, Section 16284 states that “a health professional shall not provide a telehealth service without directly or indirectly obtaining consent for treatment.” As with all documentation requirements, it is important for health professionals to document the attainment of consent to treatment through telehealth services. The sole exception to the consent requirement found in Section 16284 relates to “providing a telehealth service to an inmate who is under the jurisdiction of the department of corrections and is housed in a correctional facility”, in which case Section 16284 does not apply. For most patients—except inmates—health professionals should treat the informed consent requirement as a condition precedent to any telehealth service.
7. Prohibition on Prescribing Controlled Substances. Section 16285 permits a health professional who is engaging in telehealth services to prescribe drugs to the patient, if: a) the health professional is a prescriber; and b) the drug is not a controlled substance. As noted above, doctors of medicine and doctors of osteopathic medicine, for instance, are prescribers under Michigan law, and thus, are prohibited from prescribing controlled substances via telehealth in Michigan.
Given the express nature of the Telehealth law with respect to the consent requirement and prohibition to prescribe controlled substances, it is notable that the Telehealth Law does not expressly require an in-person exam prior to engaging in telehealth services (which is required in some states). As some telemedicine providers view the in-person examination requirement (which is required in some other states) as a barrier to performing some telemedicine services, the Michigan legislature’s election to remain silent on the in-person examination requirement is welcomed news for some healthcare providers seeking to engage in telehealth services. Additionally, the exclusion of language requiring an in-person exam corresponds with the telemedicine reimbursement section of Michigan’s insurance code, which prohibits health insurance policies in Michigan from including a face-to-face requirement. Specifically, MCL 500.3476 states that “[a]n 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 must be provided by a health care professional who is licensed, registered, or otherwise authorized to engage in his or her health care profession in the state where the patient is located. 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.”
Although the Telehealth Law sets the foundation for telehealth services in Michigan, it should be noted that further guidance may be forthcoming to further regulate the telemedicine industry in Michigan. The Telehealth Law authorizes the Michigan Department of Licensing and Regulatory Affairs (“LARA”), in consultation with the various professional licensing boards, to issue rules regarding the requirement to obtain informed consent prior to treating a patient via telehealth services and the prohibition of prescribing controlled substances. Thus, it is possible that requirements regarding the status of Michigan’s telehealth industry could be guided by future rulemaking. Additionally, in order to ensure that health professionals properly adhere to the Telehealth Law’s requirements, the Telehealth Law also authorizes a disciplinary subcommittee to impose restrictions or conditions on a health professional’s ability to provide telehealth services if such disciplinary subcommittee determines that a health professional violates the informed consent requirements or prescription of controlled substances prohibition and LARA could levy sanctions on a health professional for failing to abide by applicable law or exceeding such individual’s scope of practice.
Health professionals and medical practices currently engaging in, or contemplating engaging in, telehealth services will need to conform their practices to the Telehealth Law’s new requirements as well as other applicable laws and regulations. As with any healthcare venture, and especially telemedicine arrangements, healthcare providers need to consider whether their contemplated telehealth venture will be solely interstate or whether the venture will be intrastate, whether multiple state licensing laws need to be analyzed to determine if the physician needs to be licensed in multiple states, whether the physician’s professional liability policy will cover the physician for telehealth services in various locations, which payors will be billed and how such payors define, reimburse, and regulate telehealth services, whether the applicable states have specific documentation requirements, as well as numerous other considerations. As healthcare is a rapidly evolving and a highly regulated industry, health professionals should thoroughly analyze all potential arrangements and remain abreast of new changes that may impact their proposed business venture or service line.
This bulletin is for general informational purposes only, and does not constitute legal advice.