United States: Mass. Digital Health Developments: What To Know Now

Digital health, a term that includes telemedicine, remote patient monitoring, direct to consumer  virtual visits, and health apps for smartphones, is now an accepted part of the health care  delivery system and has been widely adopted by both health providers and consumers. According to a  recent report, the market for digital health was estimated  at  2.78 billion in 2016 and is  expected to reach 9.35 billion by 2021.1 The technology is evolving very quickly and counsel for  businesses entering this market must keep up with a complex legal and regulatory landscape. Below  are some key questions to ask when  assessing a digital health service or product.

What is the Digital Health Service or Product Being Offered?

When  counseling  a business that is entering  the digital health market, first  ask:  What type of  services will be provided? Who will provide the services? Will they involve the use of a medical  device or health app? The answers  to  those questions  will often dictate the type of corporate  entity  that must be formed and whether the device or app is subject to regulation by the U.S. Food  and Drug Administration or the Federal Trade Commission.

Entity Formation

If the digital health service includes clinical services furnished by a licensed health care  practitioner, those services must be provided through an appropriate legal entity. It is well  accepted that Massachusetts prohibits the "corporate practice of medicine " 2 . In 2012, the  Massachusetts Board of Registration in Medicine codified a long-standing practice of allowing  physicians to practice through licensed entities such as hospitals and clinics or through a  nonprofit entity. Therefore, unless these exceptions apply most services provided by licensed  health care professionals must be provided through a corporation (or a limited liability  company)   that meets the  ownership  and control requirements under the professional corporation  laws. A  for-profit  digital health company that is planning to provide services directly to consumers has  various legal strategies to consider that will address the corporate practice of medicine including  contracting with a professional corporation or a professional limited liability company to provide  the  clinical services.

Professional Standards

If licensed professionals are providing services, attention must be paid to the professional  standards for that particular professional. Numerous states have established rules or guidance that  dictates many aspects of a telemedicine visit including for example, how and when the  physician/patient relationship is established. In contrast, the Massachusetts Board of Registration  in Medicine and the Massachusetts Board of Registration in Nursing, among other professional  licensing boards, have not set out specific standards for care delivered via telemedicine.

The Board of Registration in Medicine has issued guidance regarding prescriptive practice  cautioning that the use of telemedicine to prescribe should be in accordance with current standards  of practice and carry the same professional accountability as prescriptions delivered during an  encounter in person.3

To the extent that professional services will be carried out by nonphysicians such as nurse  practitioners or physician assistants, it is important to ensure that any applicable supervision  requirements, such as the written collaboration agreements necessary to oversee a prescriptive  practice for nurse practitioners and physician assistants, are met.

Regulation  of Devices and Apps

Whether or not the business model contemplates the involvement of a clinician, a key consideration   is whether a device or app that is used in connection with the service offering is regulated by the    FDA. The law and guidance on whether a health-related device or mobile app is subject to  regulation is continuing to evolve.

In  general, the FDA regulates medical devices that are intended for use in the diagnosis of  disease, or in the cure, mitigation, treatment or prevention of disease.4 With the growth of  mobile apps and health-related software, the FDA, through guidance documents, took a risk-based  approach that distinguished applications, hardware and software that might qualify as a medical  device subject to regulation from health trackers, disease management apps, and apps providing  generalized medical information that would be exempt  from regulation or would not fall under FDA  jurisdiction  at all.

Congress recently stepped in through the Cures Act and amended the definition of a medical device  to exclude certain digital health technologies such as those that provide administrative support or  those that help to maintain or encourage a healthy lifestyle.5 The FDA will be issuing guidance  under this law but, in the meantime, the FDA has signaled its intention to focus only on a small  subset of health apps that pose a higher risk to patients if they do not work as intended.

In addition to the potential regulation by the FDA, digital health companies need to be aware of  the federal and state truth in advertising laws that will apply to misleading claims about safety  or performance. The FTC has been aggressively enforcing the FTC Act which prohibits "unfair or  deceptive acts or practices in or affecting commerce".6 The Massachusetts Office of the Attorney  General has long been a leader in the enforcement of unfair and deceptive practices and it can be  expected to be just as aggressive in the digital health space using the Massachusetts Consumer  Protection Act (Chapter 93A).

Protecting Patient and Personal Data Does HIPAA Apply?

Data privacy and security is one of the most important legal issues and operational risks for a  digital health company. The first question is whether the company is regulated by the Health  Insurance Portability and Accountability Act. HIPAA only covers "protected health information" or  PHI that is created, collected or maintained  by health care providers (covered entities)  or  companies that provide services to covered entities and as part of those services accesses or uses  PHI (business associates). If the business is a covered entity or business associate, the HIPAA  privacy rule imposes limits and conditions on the uses and disclosures that may be made of PHI  without consumer authorization and gives consumers rights over their health information. Some of  the HIPAA requirements such as the "Notice of Privacy Practices" and written authorizations are  challenging for digital health companies especially when used on a mobile platform. The HIPAA  security rule mandates, such as implementing administrative, physical and technical safeguards, may  be less daunting as they can be tailored to the size and scope of the business.

Technology companies and other vendors that service health care providers as business associates  will need to enter into business associate agreements (BAAs) with covered entity customers. When  drafting a BAA for a digital health company, it is important to watch out for onerous  indemnification provisions that covered entities often seek to include.

One of the most important obligations for both covered entities and business associates under HIPAA  is the reporting of data breaches. Covered entities must undertake a four-factor risk assessment to  determine whether or not the PHI has been compromised and has to be reported to the federal Office  for Civil Rights as well as to the patient. Business associates must report such breaches to the   covered entity. Keep in mind that many digital health services and products obtain health data directly from the  patient or consumer, which may not be data that is protected under HIPAA. Customer contracts and  consumer-facing materials should be clear as to whether the data that is maintained by the business  is subject to HIPAA.

Massachusetts Data Security Law

Whether the digital health business is covered by HIPAA or not, if the business collects or  maintains "personal information" from Massachusetts consumers or its Massachusetts employees it  will be subject to the Massachusetts data security law.7 Personal information is defined as a  resident's first name and last name or first initial and last name in combination with financial  information such as a Social Security number, a driver's license number, or credit card or other  financial account number.8 Businesses covered under this law are required to develop, implement  and maintain a comprehensive written information security program or "WISP" that contains  administrative, technical and physical safeguards that are appropriate to the size, scope and type  of business.

The data security law requires that data containing personal information be encrypted during  wireless transmission and while stored on laptops or other portable devices. 9  Any unauthorized  acquisition or unauthorized  use of unencrypted  data must be reported to the Office of the  Attorney General, which has broad enforcement authority, as well as to the consumer.

Getting Paid

Payment and coverage for services delivered via telemedicine are one of the biggest challenges for  telemedicine adoption. Patients and health care providers may encounter a patchwork of arbitrary  insurance requirements and disparate payment streams that do not allow them to fully take advantage  of telemedicine." - American Telemedicine  Association,  50 State Telemedicine Gap Analysis:  Coverage & Reimbursement For Massachusetts-based telemedicine providers payment continues to be a challenge. Efforts by the  Massachusetts Legislature to pass parity laws have failed thus far. The parity laws passed by state  legislatures around the country typically are limited to coverage parity - that is, private payors  must cover telehealth services and not impose additional limitations on coverage provided via  telehealth.

More important for providers is reimbursement parity which requires payers to reimburse  telemedicine services at the same rate as in-person services.

Despite the lack of a parity law, many Massachusetts insurers have begun to offer telehealth  services to their members and provide reimbursement to their providers.  Payment rules are  typically found only in the insurers' telehealth payment policy or provider manual. These payment  rules vary a great deal, with some insurers requiring a two-way  video conference and others  dictating  the location of the patient (i.e., in the hospital  or physician  office and not at  home).

Reimbursement is much more limited on the government payer side. Medicare will only reimburse for  telehealth  when the patient is present at  a specific  location (e.g., in a county  outside of a  Metropolitan Statistical Area or in a Health Professional Shortage Area). Each year, a number of  bipartisan bills are introduced in Congress aimed at expanding Medicare coverage for telehealth  services.

Unlike most states, MassHealth does not reimburse for telehealth services under its fee-for-service  program. Fortunately, beginning in January 2018, MassHealth is expected to cover almost 1 million  members under its accountable care organization program providing new opportunities to include  digital health into the care delivery system for Medicaid  beneficiaries.

What's Ahead?

Digital health companies will play an increasingly important role in the health care delivery  system as payers continue to look for ways to bring down the costs of health care while improving  access,  quality and patient outcomes and will rely on counsel to stay on top of the fast-moving  legal environment.

Ellen L. Janos is a member at Mintz Levin Cohn Ferris Glovsky and Popeo PC in Boston. She  previously  served  as an assistant  attorney  general  for  the Commonwealth  of Massachusetts.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the  firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This  article is for general information  purposes and is not intended to be and should not be taken as  legal advice.

Footnotes

http://www.marketsandmarkets.com/PressReleases/telehealth.asp

2 McCurdo v. Getter, 10 N.E.2d 139 (Mass. 1937) (enjoining a corporation from practicing   optometry  through employment  of licensed optometrists).

3  Board of Medicine Prescribing  Practices  Policy  and Guidelines  (Policy 15-05 Adopted Oct.  8, 2015).

4  21 U.S.C.  § 321H.

5  Public Law 114-255, § 3060.

6 Section 5(a) of 15 U.S.C. 45(a); see https://www.ftc.gov/news-events/press¬  releases/2016/12/marketers-blood-pressure-app-settle-ftc-charges-regarding  (marketer of blood  pressure app settles charges regarding the accuracy of readings).

7  G. L. c. 93H.

8  G. L. c. 93H,  § 1.

9  201 CMR 17.04(3) and (5).

Mass. Digital Health Developments: What To Know Now

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