Telehealth – Embraced by Patients, Provincial Regulators and Public Payors Alike
This article was written by Ian Trimble and Sara Zborovski from Stikeman Elliott. The authors would like to thank Devyn Olin, student at law, for her valuable research and contribution to this article.
Even before the COVID-19 pandemic, telehealth platforms had been growing in popularity. Over the past several years, we have seen an increase in the types of health services being offered by phone and online, targeting an increasing range of patients. Telehealth has become a pathway to healthcare for individuals who live in remote areas without easy access to a primary care physician, an important alternative for individuals seeking treatment for conditions from someone other than their primary care physicians, including specialists, and for individuals who prefer to obtain healthcare services from the comfort of their own home.
However, what we have seen in the past 15 months during the global COVID-19 pandemic is a significant acceleration in the adoption and acceptance of telehealth as a method of providing and receiving healthcare. During the pandemic, the provision of remote healthcare has become essential, and we have seen a significant uptake in the use of technology to provide these services. Both healthcare providers and patients have adapted and now, with the help of technology, physicians and other healthcare professionals are providing many of the services they traditionally provided in person either over the phone or by way of a video messaging platform.
Provincial regulatory authorities have been forced to adapt in response to this increasing reliance on the provision of remote healthcare. Since the onset of the pandemic, we have seen provincial healthcare professional regulatory bodies who were previously resistant to the provision of telemedicine start to encourage members to embrace it. For example, prior to the pandemic and as recently as 2019, the regulator in Quebec (le College des médecins du Québec or CMQ) advised its membership that “for most common health problems, a physical examination will be necessary before the doctor can make a diagnosis, which an online medical consultation does not allow.”
More recent guidance issued by the CMQ in February of 2021 now advises Quebec-based physicians that many physical examination tests can be performed by videoconference, although they are not possible by telephone, and recognizes that there are electronic tools that can aid such exams. The CMQ did caution (both in 2019 and 2021) that there are cases where telemedicine is not appropriate and that physicians should refer for in-person assessment where appropriate.
Public payors have also adapted to the provision of telemedicine. Prior to the pandemic, we started to see some early adoption of telehealth by some provincial payors, i.e., some public payors were starting to reimburse for some telemedicine services. However, until recently, the vast majority of provincial payors only provided reimbursement to physicians for in-person visits. In contrast, today physicians can obtain reimbursement for many services provided through telehealth (provided, of course, that they are provided appropriately).
This increasing use of telehealth has triggered some interesting legal issues, some of which we discuss below.
As set out above, prior to the pandemic, the provision of telehealth services was not widely covered by provincial healthcare plans, meaning that telehealth providers were not readily able to bill public plans for the services they offered. As a result, patients receiving telehealth services were often directly paying out-of-pocket for such services, or if available, the services were being charged to a third-party payor, such as an employer or private healthcare plan.
The recent more widespread coverage of telehealth services creates both opportunity and risk for providers. On the one hand, there is a significantly increased opportunity to provide reimbursable healthcare services remotely and to bill public payors for the services. However, there is a risk that providers who continue to bill patients or other third-parties could be offside legislation that prohibits billing for services that are publicly covered. This criticism has been made in respect of certain private healthcare clinics and could be extended to telehealth portals.
It will therefore be interesting to see if public billing for telehealth is made permanent. Alberta has announced plans to invest funding to expand efforts on virtual health services. In Ontario, the ability to bill has generally been referred to as temporary by the public payor and will end when the Ministerial Order that established them is no longer in force. However, the ministry and the Ontario Medical Association are exploring ways to increase access and the widespread acceptance of telehealth may encourage the ministry to make public coverage permanent.
Rules Regarding Choice of Pharmacy
Many telehealth providers have integrated pharmacy dispensing services into their platforms. While this has many advantages to both the healthcare providers and the patients, it has the potential to conflict with rules prohibiting healthcare providers (or others) from limiting the patient’s choice of pharmacy. These rules should be taken into account when setting up such systems.
Privacy and Data Security
Privacy and confidentiality are also important considerations in providing telehealth, both in terms of the security of the platform used as well as in terms of how they are used. For example, if the physician or patient is located in a public area during the consult then confidentiality is difficult to ensure.
Prior to the pandemic, some public payors would only reimburse for services provided through approved systems. The lack of guaranteed privacy was also one of the main barriers to widespread acceptance of telehealth by some regulators. While these concerns have been somewhat relaxed during the pandemic: regulators, public payors and insurance providers like the Canadian Medical Protective Association (CMPA) are quick to remind healthcare providers that their duties of confidentiality and privacy continue even when providing care via telemedicine.
Location of patient and location of provider
Given the virtual nature of telehealth, geographic considerations are introduced that were not relevant for in-person visits. For example, an Ontario-licensed physician located anywhere in the world is able to provide telemedicine to a patient anywhere in the world. Whether this is permitted depends on three independent factors: the jurisdiction in which the physician Is licensed, the location of the physician, and the location of the patient. Regulators have not taken a consistent approach. Some regulators take the position that patients located in their province must be treated by physicians licensed in that province. Some regulators have even created telemedicine licenses providing an abbreviated licensing process for physicians licensed elsewhere who wish to provide services. Other regulators have taken the position that provided the physician is licensed in any jurisdiction, then they can provide telemedicine (although patients should be aware that any complaints must be made to the regulator in the province where the physician is registered).
The CMPA has indicated that physicians will generally be eligible for insurance coverage where the medical-legal problem or legal action is initiated in Canada, but not where it is not (for example for patients not resident in Canada). However, it has also reminded physicians that licensing considerations must be taken into account when providing telemedicine.
Sara Zborovski is a partner in Stikeman Elliott’s Corporate Group. Her practice focuses on providing regulatory and commercial counsel to companies regulated by Health Canada. She helps clients to navigate the regulatory landscape implemented by the Food and Drugs Act, the Cannabis Act and other legislation and associated regulations overseen by Health Canada and provincial regulators. Sara provides strategic counsel to pharmaceutical, cannabis, food and beverage, natural health product, medical device, cosmetic and tobacco companies on market access, authorizations and licensing, advertising and marketing and product safety and recalls. She assists with product licence and market access strategies, establishment/facility licensing and GMP/GPP programs. On the compliance side, Sara assists clients in developing SOPs and compliance policies, reviews product packaging and labelling and provides strategic advice on advertising and marketing programs, including assistance with pre-clearance agencies and representation before the Pharmaceutical Advertising Advisory Board and Advertising Standards Canada. She also advises clients on federal and provincial privacy laws, particularly as these relate to healthcare, and federal and provincial access to information and freedom of information matters.
Ian Trimble is an associate in Stikeman Elliott’s Corporate Group. His practice focuses on providing regulatory and commercial counsel to companies regulated by Health Canada, including drug manufacturers and wholesalers, cannabis companies, and companies involved in the marketing and sales of natural health products, food and beverage, cosmetics, and medical devices. Ian provides strategic counsel on market access and compliance strategies, and helps clients deal with regulatory and pre-clearance agencies. He also advises on the regulation of healthcare professionals and the interactions between companies and those professionals.