Is it Legal? It Depends.
You have an idea for your healthcare practice or business and asked for your attorney’s blessing. Why didn’t they just give you a black-or-white answer?
The most frustrating response a lawyer can give a client is also quite common: “it depends.” You just want a straight answer to a straightforward question! But a seemingly simple question in healthcare law is often complicated by the various levels of laws and regulations that overlap and sometimes conflict.
Consider this scenario: You are a psychiatrist in Illinois who provides psychiatric services via telehealth in Illinois. However, you want to expand to New York. It should be as easy as getting a medical license there, right?
First, you have to consider federal laws, which operate on a national level and affect all states equally. In our scenario, you might confront the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, which prevents providers from prescribing controlled substances to patients without first meeting them in person. This puts a wrinkle in your telehealth business because if you are located in Illinois, you’ll probably have difficulty seeing a New York patient in-person to prescribe medication.
But wait, didn’t Covid do away with the Ryan Haight Act?
Not exactly. While it is true that providers can currently prescribe controlled substances through telemedicine to patients without first seeing them in person, this is likely to change. The Ryan Haight Act provided for a public health emergency exception, so once Covid is no longer considered an emergency, all regulations regarding prescribing medications will snap back into place.
But while Covid triggered some notable changes in the law, healthcare law always evolves, even in more conventional times. So, in addition to the Ryan Haight Act, there’s a more generalized effort to regulate telehealth, balancing the growing need for healthcare access with high standards of care. Thus, It’s a confusing time to navigate the healthcare legal space. If you’re starting or expanding a healthcare business, you need to recognize trends and anticipate near-term changes in the law.
Okay. If I comply with federal law, am I legal?
Once again, it depends. Healthcare is highly regulated at both the federal and state levels. To further complicate matters, each state has its own requirements and regulations regarding the education you need to obtain a license to practice healthcare. Moreover, each state defines “telehealth” differently. Then, each state typically has a provision requiring that telehealth healthcare providers offer the same standard of care as an in-person provider. So if you want to provide telehealth services in multiple states, you’ll need to know each state’s standards for in-person care.
Sometimes, state regulations offer more protections to patients than federal regulations, creating conflicting demands. Therefore, a broad federal analysis generally won’t be enough to ensure you comply with all applicable laws. Before an attorney can accurately advise you on reaching full compliance, they’ll need to consult the state laws.
So once I comply with state laws, I’m legal, right?
Almost, but it still depends. The next step is to look at the regulations that insurance companies create. You might be fully “legal” at the federal and state level. But from a practical standpoint, It won’t help you if you don’t look at the insurance regulations. Insurance regulations also vary from state to state and can be dense and confusing. Perhaps the insurance payors will pay for certain treatments in one state but not in another. Maybe they’ll have more stringent billing requirements in State A and more relaxed requirements in State B. As frustrating as this might be, it’s necessary to dig into insurance regulations so your healthcare practice can function.
I’ve figured out all that insurance stuff. So I must be good to go!
Well, it still depends. You’ll also need to consider your profession’s code of conduct. While you may not think this is a legal requirement, many states have incorporated codes of conduct through reference. In other words, non-compliance can create real legal consequences such as loss of licensure or other penalties. To add complexity, many professions have multiple codes of conduct, and states can adopt whichever standards they like.
So, going back to our example, imagine a psychiatrist from Illinois who wants to practice in New York. They’ll have to consider whether or not they are in compliance with the code of conduct adopted by each state in which they’re practicing, along with any other state requirements.
As a healthcare provider, navigating these requirements may feel like unnecessary red tape or bureaucracy. However, it’s important to remember that these levels of regulation seek to protect patients and ensure they get the best healthcare possible from their provider.
The experienced healthcare attorneys at Jackson LLP can help you navigate the web of regulations that apply to your practice. If you’re a healthcare professional in any state where we have licensed attorneys, book a free consultation to see if we fit your needs.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.