United States: A Primer On Telemedicine And The Workplace

Last Updated: February 2 2018
Article by Jeffrey D. Smith and A. Kevin Troutman

Most people probably do not enjoy sitting in a doctor's reception area with other coughing and sneezing people while waiting for an appointment, or devoting hours to getting a prescription refilled. The concept of telemedicine represents a possible alternative to these scenarios. It's a model that is quickly growing in popularity, largely because it can make many aspects of medical care easier to access and less expensive. Although telemedicine can be a great solution, many employers are unaware of the legal risks associated with introducing it in the workplace.  And healthcare employers who offer such services must of course be acutely aware of issues that this service model presents.

What Exactly Is Telemedicine?

Telemedicine generally refers to the provision of some sort of medical service by health care professionals remotely, through technology, rather than in person. These services may be provided via either real-time communications—think phone calls or video conferencing—or "store-and-forward" technology, such as transmitting medical images or biosignal data. Services that are commonly offered through telemedicine range from patient consultations and primary care diagnoses, to prescription drug refills and behavioral health counseling.

The appeal of telemedicine services for an employer is that they generally reduce benefit costs while increasing convenience and access to care for group health plan participants. Plan costs are reduced because medical services offered through telemedicine are often less expensive than an office visit. Telemedicine can also potentially help identify and address smaller health issues before they become more serious.

Telemedicine can also reduce the amount of time off needed for employees to visit the doctor. It may be especially attractive to employers with operations in rural settings where advanced or specialty health care options are inaccessible or inconvenient, and to employers whose employees have irregular schedules or travel frequently (because a physician consultation can be accessed remotely).

Telemedicine can be offered in a variety of forms, but it is most easily classified into two types: provider-sponsored and employer-sponsored group health plans. Provider-sponsored telemedicine is simply an electronic "visit" with a medical professional, typically through provider-authorized software or apps. Under a group health plan there is a charge for the visit, paid in the same way as an in-person visit. This type poses little risk for employers.

Group health plan-centered telemedicine involves an arrangement wherein a telemedicine company provides the conduit to on-call physicians allowing plan members to speak with a doctor who is affiliated with the telemedicine provider. Many of these arrangements charge a monthly maintenance fee for access to free or reduced-cost "visits."

Legal Risks For All Employers

Offering telemedicine services to employees can raise a number of legal issues, the most common being compliance with federal laws such as ERISA, COBRA, and HIPAA, as well as state laws concerning medical licensure and practice and informed consent.

Employers offering a telemedicine program to all employees regardless of their group health plan enrollment status could inadvertently create a separate ERISA group health plan. If the program provides primary care or prescription drug services, it would qualify as a separate group health plan under ERISA, COBRA, HIPAA and other federal laws, and would therefore be subject to those requirements under law. Further, all telemedicine programs are subject to HIPAA's privacy, security, and breach notification requirements.

Additionally, each state has medical licensing laws that may preclude or restrict a provider who isn't licensed in the state from delivering telemedicine services to that state's residents. Some state laws may also restrict the scope of benefits that providers can deliver over the telephone or internet. Further, some local rules may require "informed consent" from patients before a provider is permitted to give telemedicine services. The consent must provide an explanation of telemedicine, laying out the expected benefits and possible risks associated with using the service.

Employers must also be careful to not disqualify employees from using their health savings accounts (HSA). An HSA allows individuals covered under a high-deductible health plan (HDHP) to defer compensation on a pre-tax basis for the purpose of paying eligible medical expenses. To maintain eligibility, the HSA participant must not be covered under any disqualifying coverage, which generally includes any health coverage that provides a benefit prior to meeting the HDHP deductible (unless one of the IRS's limited exceptions applies). Thus, a telemedicine benefit could be considered disqualifying coverage where, for example, the employer pays a portion of the telemedicine consultation, or the participant pays less than fair market value for the consultation before meeting the HDHP deductible. A provider-sponsored program or a telemedicine program requiring a separate charge for each "visit" would avoid this HSA issue.

Best Practices For All Employers

Any employer that considers offering a telemedicine program should take compliance requirements into consideration when designing and implementing the program. The best way to minimize the risk of creating a separate group health plan—and thus triggering additional compliance obligations under various federal laws—is by permitting only those employees who are enrolled in a group health plan to use the telemedicine benefits. This way, the telemedicine program can be integrated with the group health plan to meet federal requirements. As such, it must also be available to qualified beneficiaries through COBRA.

Additional Considerations For Healthcare Providers

Employers of healthcare workers who actually administer such services to patients must consider myriad other issues in addition to all of those mentioned above. The fact that telemedicine may be more convenient or cost-effective to patients does not materially reduce the serious compliance issues that must be fulfilled by the healthcare provider. Besides licensure and other state law rules, HIPAA compliance and general confidentiality requirements are critical considerations for healthcare providers engaged in this aspect of care.   

Another key aspect of providing these services is ensuring that patients understand and consent to the very limited scope of available diagnoses and treatments. Obviously, a telephonic or online encounter is far different than one in person. The provider has the burden of making the scope of its services clear.

Further employment issues vary according the nature and setting of the service. For example, employees who provide telemedicine services from home or other remote locations are still protected by the Occupational Safety and Health Act (OSHA) and the Fair Labor Standards Act (FLSA), which encompass detailed time-recording requirements and minimum wage and overtime rules. Other employment laws, including but not limited to those which prohibit workplace discrimination and harassment, also apply. Employers must ensure that key employees receive documented training regarding these and other workplace rights and protections. In short, while telemedicine services may present some new circumstances, employers remain responsible for respecting and enforcing employees' rights to a workplace that is safe and free from discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jeffrey D. Smith
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ogletree, Deakins, Nash, Smoak & Stewart
Fisher Phillips LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions