Michigan's E-health Overhaul: Regulating Use of the Internet in Medical Practice
By Maro E. Bush
E-health is a rapidly-expanding health care delivery model with the potential to enhance accessibility to health care and save both health providers and patients in time and medical costs. The use of technologies such as the Internet, electronic mail and physician-sponsored websites provide physicians with unique opportunities to assist and treat their patients. However, health care providers must use caution when balancing the efficiency and cost benefits of e-health against the possible legal implications, such as the risk of a compromised physician-patient relationship or diminished patient privacy.
Although there are varying definitions of e-health, it is helpful to begin thinking of it as the “intersection of health care and technology.” E-health can encompass everything from passive websites disseminating medical information to the public, to wirelessly-controlled Educated Doctor Guided Assisting Robots (“EDGARs”) capable of transmitting the virtual presence of a doctor, nurse or other consultant who might be thousands of miles away. Utilization of the Internet, teleconferencing and computerized medical records is just a fraction of the technology that is beginning to define the concept of e-health and modern health care.
There is often confusion over the appropriate terms to use when discussing e-health, possibly due to the interdisciplinary nature of the field. “E-health” is an umbrella term used to encompass all practices related to the technologically-facilitated delivery of health care. “Telehealth” refers to health monitoring at a distance, while “telemedicine,” the delivery of health care at a distance, is a subset of telehealth. “Cybermedicine” is a more specific area of telemedicine where patients and health care providers communicate via electronic mail. Cybermedicine also encompasses e-prescribing, the use of automated data entry systems to generate prescriptions electronically rather than on paper.
To date, there have been a number of successful e-health endeavors in the United States. In 1995, the U.S. Department of Defense implemented the “first wave” of telemedicine technology in order to provide U.S. armed forces overseas with comprehensive telemedicine services. Utilizing a dedicated video link, doctors located at a central hospital were able to share time-sensitive health information with a primary care doctor thousands of miles away. In this manner, military men and women were able to receive telemental, telepathology, and teledermatology health care services. Because of its capability, telemedicine has been said to provide "good medicine in bad places."
More recently, the U.S. Department of Veterans Affairs implemented the largest telehealth patient monitoring system in the country. Currently, more than 30,000 veterans are connected to their health care providers though telehealth devices which use modem technology to transmit data directly to the patient’s electronic health records at the VA Medical Center. The program has saved valuable hospital resources by reducing emergency room visits, unscheduled clinic appointments and inpatient hospital stays. The monitoring program is expected to expand to 90,000 veterans by 2009. In addition, the VA has launched an $18 million pilot program to address the growing population of Iraq war veterans suffering from post-traumatic stress disorder.
In Michigan, health care providers have been implementing aspects of e-health in their practices for over a decade. One of the first large-scale efforts of this kind was the 2005 collaboration between Detroit’s Henry Ford Health System, Health Alliance Plan and Medseek. More than 300 primary care physicians, 577,000 patients and 24 medical centers participated in an e-prescribing program, which in the first year alone helped physicians avoid an estimated 6,500 allergic reactions in patients and saved over $3.1 million dollars in pharmacy costs by increasing generic drug use. Another program involving virtual “e-visit” consultations between patients and their health care providers enabled over 100,000 patients to obtain lab results, view health information, renew prescriptions, and schedule follow up medical visits on-line. Both these programs demonstrate the potential to increase patient safety and satisfaction and greatly improve the quality of health care.
While e-health can benefit both patients and physicians, it also raises a variety of legal issues for providers. Some of the key issues being discussed by state and national professional health care provider organizations include preserving the integrity of the physician-patient relationship, the best mechanisms for securing confidentiality of private health information, and the importance of maintaining the duty of care a physician owes to his or her patient.
Michigan has been proactive in addressing e-health concerns. In 2005, the Director of the Bureau of Health Professions of the Michigan Department of Community Health assembled a workgroup to examine the issues associated with the delivery of health care through the use of various technologies. Specifically, the workgroup was asked to review e-health technologies, current federal and Michigan laws affecting the use of technology in the provision of health care, and the related positions and regulations of other states. The end result was the 2008 Report and Recommendations of the E-health Workgroup (available on the Michigan Department of Community Health website).
In June, the Director approved the Bureau of Health Professions to move forward and implement the major recommendations of the E-health Workgroup’s 2008 Report. The three major recommendations include:
The Federation of State Medical Boards’ Model Guidelines for the Use of the Internet in Medical Practice regulates the use of electronic mail and websites by physicians in medical practice. The guidelines require doctors to conduct a documented, in-person patient evaluation, including history and physical exam, prior to providing treatment via the internet and/or issuing electronic prescriptions. In other words, treatment based solely on a questionnaire does not constitute an acceptable standard of care. Electronic treatment and consultation, including issuing of prescriptions via the Internet, are held to the same standard of appropriate practice as those in traditional face-to-face settings.
In addition, the guidelines encourage physicians to maintain written policies and procedures for the use of patient-physician electronic mail. These policies and procedures should address:
Sufficient security measures, such as firewalls, encryption and password protection must also be in place to assure the confidentiality and integrity of protected health information. A written agreement documenting a patient’s informed consent for the use of patient-physician electronic mail should be discussed with and signed by the patient. The medical record should include the patient’s informed consent, as well as document all other patient-related electronic communications.
Physician medical practice sites are also regulated by the Federation of State Medical Boards’ Model Guidelines for the Use of the Internet in Medical Practice. Physician medical practice sites are defined as Internet sites to which access is limited to licensed physicians, associated medical personnel and patients. A physician medical practice site is interactive and therefore qualifies as a practice location. The webpage should clearly disclose the owner of the site, the specific services provided and the physician’s contact information, licensure and qualifications. The site should include the fees for on-line consultations and services, and how payment is to be made. If the physician has a financial interest in any information, products or services advertised on the site, he or she must disclose that financial interest. Finally, the site must disclose the appropriate uses and limitations of the site, the estimated response times for patient electronic mails, to whom patient health information may be disclosed, and the rights of patients with regard to patient health information.
In addition, a physician medical practice site should provide patients with a clear mechanism to access, supplement and amend patient-provided personal health information and to provide feedback regarding the site and the quality of information and services. The site must also contain information on how a patient can issue a complaint to both the individual physician operating the site, and the applicable state medical boards. Finally, the advertising or promotion of goods or products from which the physician receives direct remuneration, benefits, or incentives is prohibited from being displayed on a physician’s medical practice site.
Michigan’s newly adopted e-health regulations should be strictly adhered to in order to ensure compliance in this developing field. Health care providers must use caution when implementing e-health technology in their practice, and may ultimately benefit from consulting with an attorney to help navigate the waters of e-health in Michigan. This way, health care providers can ensure that they, and their patients, receive all the benefits of e-health while avoiding any legal pitfalls.
Maro E. Bush is an associate with Frank, Haron, Weiner and Navarro PLC, where she focuses her practice on federal False Claims Act/qui tam litigation and health care law, including representation of individual physicians, health care professionals, home health agencies and other health care entities in a variety of areas relating to health law and regulations.
E-health is a rapidly-expanding health care delivery model with the potential to enhance accessibility to health care and save both health providers and patients in time and medical costs. The use of technologies such as the Internet, electronic mail and physician-sponsored websites provide physicians with unique opportunities to assist and treat their patients. However, health care providers must use caution when balancing the efficiency and cost benefits of e-health against the possible legal implications, such as the risk of a compromised physician-patient relationship or diminished patient privacy.
Defining E-Health
Although there are varying definitions of e-health, it is helpful to begin thinking of it as the “intersection of health care and technology.” E-health can encompass everything from passive websites disseminating medical information to the public, to wirelessly-controlled Educated Doctor Guided Assisting Robots (“EDGARs”) capable of transmitting the virtual presence of a doctor, nurse or other consultant who might be thousands of miles away. Utilization of the Internet, teleconferencing and computerized medical records is just a fraction of the technology that is beginning to define the concept of e-health and modern health care.
There is often confusion over the appropriate terms to use when discussing e-health, possibly due to the interdisciplinary nature of the field. “E-health” is an umbrella term used to encompass all practices related to the technologically-facilitated delivery of health care. “Telehealth” refers to health monitoring at a distance, while “telemedicine,” the delivery of health care at a distance, is a subset of telehealth. “Cybermedicine” is a more specific area of telemedicine where patients and health care providers communicate via electronic mail. Cybermedicine also encompasses e-prescribing, the use of automated data entry systems to generate prescriptions electronically rather than on paper.
Successful E-Health Ventures
To date, there have been a number of successful e-health endeavors in the United States. In 1995, the U.S. Department of Defense implemented the “first wave” of telemedicine technology in order to provide U.S. armed forces overseas with comprehensive telemedicine services. Utilizing a dedicated video link, doctors located at a central hospital were able to share time-sensitive health information with a primary care doctor thousands of miles away. In this manner, military men and women were able to receive telemental, telepathology, and teledermatology health care services. Because of its capability, telemedicine has been said to provide "good medicine in bad places."
More recently, the U.S. Department of Veterans Affairs implemented the largest telehealth patient monitoring system in the country. Currently, more than 30,000 veterans are connected to their health care providers though telehealth devices which use modem technology to transmit data directly to the patient’s electronic health records at the VA Medical Center. The program has saved valuable hospital resources by reducing emergency room visits, unscheduled clinic appointments and inpatient hospital stays. The monitoring program is expected to expand to 90,000 veterans by 2009. In addition, the VA has launched an $18 million pilot program to address the growing population of Iraq war veterans suffering from post-traumatic stress disorder.
In Michigan, health care providers have been implementing aspects of e-health in their practices for over a decade. One of the first large-scale efforts of this kind was the 2005 collaboration between Detroit’s Henry Ford Health System, Health Alliance Plan and Medseek. More than 300 primary care physicians, 577,000 patients and 24 medical centers participated in an e-prescribing program, which in the first year alone helped physicians avoid an estimated 6,500 allergic reactions in patients and saved over $3.1 million dollars in pharmacy costs by increasing generic drug use. Another program involving virtual “e-visit” consultations between patients and their health care providers enabled over 100,000 patients to obtain lab results, view health information, renew prescriptions, and schedule follow up medical visits on-line. Both these programs demonstrate the potential to increase patient safety and satisfaction and greatly improve the quality of health care.
Potential Legal Pitfalls
While e-health can benefit both patients and physicians, it also raises a variety of legal issues for providers. Some of the key issues being discussed by state and national professional health care provider organizations include preserving the integrity of the physician-patient relationship, the best mechanisms for securing confidentiality of private health information, and the importance of maintaining the duty of care a physician owes to his or her patient.
Michigan has been proactive in addressing e-health concerns. In 2005, the Director of the Bureau of Health Professions of the Michigan Department of Community Health assembled a workgroup to examine the issues associated with the delivery of health care through the use of various technologies. Specifically, the workgroup was asked to review e-health technologies, current federal and Michigan laws affecting the use of technology in the provision of health care, and the related positions and regulations of other states. The end result was the 2008 Report and Recommendations of the E-health Workgroup (available on the Michigan Department of Community Health website).
In June, the Director approved the Bureau of Health Professions to move forward and implement the major recommendations of the E-health Workgroup’s 2008 Report. The three major recommendations include:
- Establishing a special purpose license for out-of-state physicians delivering health care to Michigan patients via e-health technology;
- Adopting the Federation of State Medical Boards’ Model Guidelines for the Appropriate Use of the Internet in Medical Practice; and
- Drafting legislation to establish the National Association of Board of Pharmacy’s Verified Internet Pharmacy Practice Standards (“VIPPS”) to protect Michigan citizens against unlawful internet prescribing.
The Federation of State Medical Boards’ Model Guidelines for the Use of the Internet in Medical Practice regulates the use of electronic mail and websites by physicians in medical practice. The guidelines require doctors to conduct a documented, in-person patient evaluation, including history and physical exam, prior to providing treatment via the internet and/or issuing electronic prescriptions. In other words, treatment based solely on a questionnaire does not constitute an acceptable standard of care. Electronic treatment and consultation, including issuing of prescriptions via the Internet, are held to the same standard of appropriate practice as those in traditional face-to-face settings.
In addition, the guidelines encourage physicians to maintain written policies and procedures for the use of patient-physician electronic mail. These policies and procedures should address:
- Privacy,
- Health-care personnel (in addition to the physician) who will process messages,
- Hours of operation,
- Types of transactions that will be permitted electronically,
- Required patient information to be included in the communication,
- Archival and retrievals, and
- Quality oversight mechanisms.
Sufficient security measures, such as firewalls, encryption and password protection must also be in place to assure the confidentiality and integrity of protected health information. A written agreement documenting a patient’s informed consent for the use of patient-physician electronic mail should be discussed with and signed by the patient. The medical record should include the patient’s informed consent, as well as document all other patient-related electronic communications.
Physician medical practice sites are also regulated by the Federation of State Medical Boards’ Model Guidelines for the Use of the Internet in Medical Practice. Physician medical practice sites are defined as Internet sites to which access is limited to licensed physicians, associated medical personnel and patients. A physician medical practice site is interactive and therefore qualifies as a practice location. The webpage should clearly disclose the owner of the site, the specific services provided and the physician’s contact information, licensure and qualifications. The site should include the fees for on-line consultations and services, and how payment is to be made. If the physician has a financial interest in any information, products or services advertised on the site, he or she must disclose that financial interest. Finally, the site must disclose the appropriate uses and limitations of the site, the estimated response times for patient electronic mails, to whom patient health information may be disclosed, and the rights of patients with regard to patient health information.
In addition, a physician medical practice site should provide patients with a clear mechanism to access, supplement and amend patient-provided personal health information and to provide feedback regarding the site and the quality of information and services. The site must also contain information on how a patient can issue a complaint to both the individual physician operating the site, and the applicable state medical boards. Finally, the advertising or promotion of goods or products from which the physician receives direct remuneration, benefits, or incentives is prohibited from being displayed on a physician’s medical practice site.
Conclusion
Michigan’s newly adopted e-health regulations should be strictly adhered to in order to ensure compliance in this developing field. Health care providers must use caution when implementing e-health technology in their practice, and may ultimately benefit from consulting with an attorney to help navigate the waters of e-health in Michigan. This way, health care providers can ensure that they, and their patients, receive all the benefits of e-health while avoiding any legal pitfalls.
Maro E. Bush is an associate with Frank, Haron, Weiner and Navarro PLC, where she focuses her practice on federal False Claims Act/qui tam litigation and health care law, including representation of individual physicians, health care professionals, home health agencies and other health care entities in a variety of areas relating to health law and regulations.