Schafer, Edward T.

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North Dakota Law Review Volume 73 Number 1 Article 11 1997 Telemedicine: An Emerging Technology with Exciting Opportunities for North Dakota Edward T. Schafer Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Schafer, Edward T. (1997) "Telemedicine: An Emerging Technology with Exciting Opportunities for North Dakota," North Dakota Law Review: Vol. 73 : No. 1 , Article 11. Available at: https://commons.und.edu/ndlr/vol73/iss1/11 This Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. CLOSING KEY NOTE ADDRESSTELEMEDICINE: AN EMERGING TECHNOLOGY WITHEXCITING OPPORTUNITIES FOR NORTH DAKOTAEDWARD T. SCHAFER*It is my pleasure to participate in the University of North DakotaSchool of Law's Symposium that explored an emerging technologywhich has exciting implications for North Dakota and all rural areas.Telemedicine has the potential to dramatically impact the health careindustry. Although it is not a remedy for all, it can, and I believe will,change the way we as a society deliver health care to people in ruralareas. It is, in my mind, one of the most exciting and substantive optionson the health care horizon today.Although telemedicine appears to be a very recent innovation, itactually began in the United States in the late 1950s. The University ofNebraska employed interactive television for tele-psychiatry consulta-tions. They linked the Nebraska Psychiatric Institute in Omaha withNorfolk State Hospital, an isolated state mental facility 112 miles away.In the 1970s and 1980s, limited telemedicine projects were institut-ed in the United States and Canada. With the exception of a twenty-yearold program in Newfoundland, none of the programs that began before1986 survived. The most significant reason for their failure was theinability to justify the programs on a cost-benefit basis.With the development of national information infrastructure and theconsiderable technological advancements of the last decade, telemedicineis proving more viable. And, as was learned during this Symposium Con-ference, North Dakota is a leader in proving the benefits and power oftelemedicine.Two medical facilities in Bismarck, North Dakota-Medcenter Oneand St. Alexis Medical Center--currently perform telemedicine patientconsultations in North Dakota. Residents in twenty-nine of our ruralcommunities and their surrounding areas are receiving medical servicesvia telemedicine. Patients consult with physicians in specialties such asorthopedics, emergency care, dermatology, or surgery.Approximately 750 telemedicine consultations have been complet-ed in North Dakota to date. In addition, several providers includingMeritCare in Fargo, Radiology Consultants in Minot, and West River inHettinger, are providing tele-radiology services to patients in outlying* Governor of the State of North Dakota. Governor Schafer is also currently the Chair of theWestern Governors' Association.NORTH DAKOTA LAW REVIEWareas. These services are saving people time and money along with thehardship of traveling long distances to receive proper medical care.Two years ago I featured telemedicine as part of my annual State ofthe State Address. I underwent a full telemedicine consultation and examin the Chambers of the North Dakota House of Representatives duringmy speech. A doctor on site consulted with a doctor off site, who wasvisible on screen in the chambers and on statewide television. The examwas basic, but it gave people throughout North Dakota a glimpse of whattelemedicine is, how it works, and what it can do. They examined my earand my hand. Basically, the entire state got to see the inner workings ofmy head. Of course, my political opponents (and even my own staff)quipped that they were surprised the light did not shine right throughmy head and out my other ear!Based on demographics and distribution of population in our state,North Dakota is perfectly suited for this technology. We can divideNorth Dakota into eight regions of almost equal size. Four of theseregions would be considered populated, those surrounding our fourmajor cities, and four regions unpopulated. The populated regions boast147 total medical specialists and 221 surgical specialists. The unpopu-lated regions, on the other hand, only have six total medical specialists,and only thirty-three total surgical specialists.Obviously, people living in the unpopulated regions of our statealmost always have to drive a considerable distance to receive treatmentfrom a specialist. Or, through telemedicine, they can just drive acrosstown to their local doctor and consult with the necessary specialist in amajor medical center a hundred miles away.Countless examples exist to prove the value of telemedicine inNorth Dakota. Last year in Bowman, North Dakota, a young boy wasthrown off a horse. His primary care physician was concerned about afracture in his back or spine. Consulting with doctors 150 miles away inBismarck, North Dakota, the initial plan was to airlift the boy to Bis-marck. In the process, they decided to perform a telemedicine consul-tation with an emergency trauma physician, a neurosurgeon, and aradiologist. The specialists decided the injuries were not as serious asoriginally thought, and the boy could be treated at home in Bowman.This saved the family or their insurance company or both thousands ofdollars, including $5,000 for the airlift transport alone.In another case, an eighty-eight year old woman living in a nursinghome in Wishek, North Dakota, had surgery in Bismarck, North Dakota,to close several ulcers on her feet. All eight follow-up visits with a plasticsurgeon were performed through telemedicine. It saved her the traumaand exhaustion of traveling nearly 180 miles round trip to the specialist.200 [VOL.. 73:199CLOSING KEY NOTE ADDRESSHer nurses said it would take her three days to recover from these trips.Plus, her daughter did not have to take time off work to drive her toBismarck. At last report, this elderly woman was back on her feet, andwalking normally.Clearly, these examples show the impact telemedicine is alreadyhaving in North Dakota. They demonstrate just a hint of the potentialthis technology has for improving rural health care. The applicationsfor this technology are incredible. In some states, telemedicine-typedevices are being used by nurses to monitor patients with heart and lungproblems, diabetes, or a host of other ailments. A nurse can check inwith a patient at home to make sure their blood pressure, breathing, andother vital signs are okay.Telemedicine applications can also utilize an at-home computerhooked up to a nurse's station in a hospital. At the appropriate timeduring the day, the computer tells the patient to take their medicine, andrepeats the message regularly until the person either touches the "yes"square on the screen or until a nurse calls the patient to make sure thepills are swallowed on schedule.In addition to improving medical services to patients, the technolo-gy has many other applications and benefits. It enables rural health pro-fessionals to be more connected to their medical colleagues, eliminatingsome of the isolation that often discourages doctors from practicing insmall towns. Telemedicine also provides a great tool for continuing edu-cation. The Med Star program at the University of North Dakota (UND)links the school to hospitals throughout the state via an audio-videonetwork. Through this network, physicians, nurses, physical therapists,and other health care professionals can take a wide variety of continuingeducation courses taught by professors at the UND School of Medicineand Health Sciences.With benefits like this, telemedicine holds promise for improvingrecruitment and retention of health professionals in rural areas. Somehospitals in North Dakota are also using telemedicine for internal com-munications, to train or inform staff living and working at satelliteoffices hundreds of miles away.North Dakota recently earned an exciting program involving apublic and private partnership. In January of 1996, the Rural UtilitiesService of the U.S. Department of Agriculture awarded $330,000 underthe Distance Learning and Telemedicine Grant Program to the GoodSamaritan Society (GSS) for the development of a telemedicine programin western North Dakota. This program will allow seven Good SamaritanCenters in underserved rural western North Dakota to be connected via ahigh speed server based at the Trinity Medical Center in Minot. The1997]NORTH DAKOTA LAW REVIEWnetwork will provide telemedicine services to patients in Crosby, Noonan,Mohall, Bottineau, New Town, Parshall, and Velva, North Dakota.The provision of telemedicine to these skilled nursing and longterm care centers can overcome difficulties in getting medical service totheir residents, who often do not have close access to a full range ofmedical providers, and for whom travel for medical services can bedifficult or impossible because of age, frailty, cost, weather, and lack oftransportation.As exciting as these programs are, we are not over the hump yet.Nationally, and even in North Dakota, which is at the front of the pack,we are in the early stages of implementing telemedicine and realizing itsfull potential. About thirty percent of rural hospitals nationally were ex-pected to use some sort of telemedicine technology by the end of 1996,and more than forty percent of existing programs have been operatingfor less than a year.Numerous barriers and challenges exist. Costs, licensure, infrastruc-ture demands, privacy, and malpractice issues are just a few. Accordingto telemedicine providers in North Dakota, the costs of the system andthe initial cash outlays required are substantial. The basic cost for asingle-site set up is $90,000. This does not include any extra scopes,which providers in our state are frequently finding to be unnecessaryconsidering their cost of $15,000 per scope.One significant barrier for telemedicine in many states nationwide isinfrastructure. This is one key area where North Dakota is ahead of thegame. Our outstanding statewide telecommunication infrastructure is bet-ter, faster, and stronger than most other states, and provides a solid foun-dation for telemedicine. It has paved the way for reaching our smallcommunities. North Dakota was the first state to be entirely fiber-optically linked. Telephone companies provide T-1 lines statewide, ex-tending to even the most remote areas. In many states, T-1 lines do notyet extend to the rural comers that are the target for telemedicine.Without this digital circuitry, telemedicine is impossible to deliver.Reimbursement is another major sticking point. Blue Cross BlueShield of North Dakota has just recently developed a telemedicine reim-bursement procedure. I believe hospitals are still in the process of review-ing the procedure codes, so the insurance company has not paid anybills yet. But it is exciting to see this advancement. To their credit,hospitals in North Dakota have not been charging patients, insurancecompanies, or anyone for telemedicine consultations with specialists.They have been providing this as a service to rural areas while thereimbursement procedures become developed.202 [VOL. 73:199CLOSING KEY NOTE ADDRESSOfficials in the United States Department of Health are also beingurged to re-examine their policies that allow Medicaid reimbursementfor telemedicine consultations, but not Medicare. In this high-tech age,we need to adapt new regulations that get beyond the somewhat outdatedstandards that require face to face and hands on visits.We know telemedicine saves money, but solid data regardingspecific cost savings does not yet exist. The New York Times recentlyreported that a two-way telemedicine visit in rural Kansas costs sixtypercent less than a traditional office visit. Another study shows thattelemedicine allows nurses who pay home visits to visit ten or morepatients a day compared to five or six visits by car. Part of the problemwith determining cost savings is that many of the costs involved aredifficult to quantify. How can you measure the cost of time spenttraveling or the cost of wear and tear from travel on older, frail patients?The Western Governors' Association (WGA) completed a Tele-medicine Action Report in June of 1995. In it we identified six barriersto expanding inter- and intrastate use of telemedicine:1) Infrastructure Planning and Development;2) Telecommunications Regulation;3) Lack of Reimbursement for Telemedicine Services;4) Licensure and Credentialing of Physicians and OtherHealth Care Practitioners;5) Medical Malpractice Liability; and6) Confidentiality.The report also makes recommendations to governors on how toreduce the barriers within the state and regionally. It has been distribut-ed to over 1500 individuals and institutions and it appears on numerousweb pages. Since the report was published, WGA has made someprogress on a number of the barriers.I. INTERSTATE LICENSUREThe WGA has focused on interstate licensure of physicians. TheFederation of State Medical Boards developed a Model State Act thatwould provide a limited telemedicine license to ease the burden onphysicians and others that want to practice telemedicine across stateboundaries.Although I and other WGA members support their objective, we donot agree with the Federation's approach. Rather than promoting uni-form state definitions and standards, the Federation's proposal allowsMedical Boards in each state to individually define critical terms. If thisproposal were to be adopted by states, the present jumble of state19971 203NORTH DAKOTA LAW REVIEWlicensure requirements that prevent interstate telemedicine may actuallyincrease.I have written to the Executive Vice President of the Federationasking him to revisit the Model Act, and make some improvements to it.I support a model regulatory statute that establishes a special licenselimited to the practice of telemedicine across state lines, and that helps tostandardize states' licensure requirements. And, I would encourage myWGA colleagues to do the same.An effective Model Act on Licensure adopted by states would helpresolve the administrative and legal burdens that currently prohibittelemedicine practitioners from providing care to under-served ruralareas across state lines.II. CONFIDENTIALITYAnother issue WGA has taken up is confidentiality. Telemedicineconsultations might involve personal medical records being shipped overcomputer lines to other regions of the country. This can be a frighten-ing proposition, which obviously is not unique to telemedicine. It willoccur with even greater frequency as the health information infrastruc-ture comes on line. We need to find a way to ensure citizens that theirpersonal medical records will not become accessible to the public or to atalented computer hacker.Senator Bennett of Utah introduced Senate Bill 1360, The MedicalRecords Confidentiality Act of 1995. This bill ultimately died in com-mittee at the close of the 104th Congress. However, establishing federalprivacy protections for personally identifiable health information inpaper or electronic form could be the way to address privacy concerns.The present patchwork of state laws on privacy may not be suited tothe health information infrastructure that ignores state boundaries, andSenator Bennett's bill would have preempted many of those state laws.The State of North Dakota and the WGA are studying such a bill'sramifications in order to develop a western state position.III. TELEMEDICINE REGULATIONIn passing the Telecommunications Act of 1996 (Act), Congressspecified that telecommunications should be used to enhance health carein America. Key language in the Act gives health care providers theright to "rates that are reasonably comparable to rates charged forsimilar services in urban areas in that State."204 [VOL. 73:199CLOSING KEY NOTE ADDRESSThis presents many questions, including: How should the healthcare rates be calculated? Is the "comparable" standard enough to maketelemedicine feasible for the long term? Whose rates are "comparable?"The Act also mandates discounted rates for health care providers,schools and libraries, and says special incentive rates and terms should begiven to "public or nonprofit health care providers that serve peopleliving in rural areas in that state."In writing the policies and definitions to implement the legislation,the Federal Communications Commission (FCC) and the Federal-StateJoint Board on Universal Service (Board) used language and terms thatdecrease the efficiency and flexibility of the available funds. This actiondoes not seem in step with the clear intent of the law. For example, theBoard recommended that the health care providers serving people whoreside in rural areas must also be physically located in rural areas, whichimmediately disqualifies most telemedicine providers. As Chairman ofthe Western Governors' Association, I am working with my colleaguesand WGA staff to try to convince the FCC to revise some of theseregulations.Much of the progress of telemedicine in North Dakota is the resultof efforts by private companies. This is appropriate, and I commendthese medical providers who are paving the way in this area. At the sametime, if we are going to overcome some of the barriers to maximum useand benefit of this technology, the state must provide some leadershipand direction. I have asked Dr. Jon Rice, State Health Officer, to lead atask force that will outline a plan and direction for implementingtelemedicine in North Dakota.The task force will be a broad-based group of health care providers,telecommunication providers, medical school staff, and interested stateofficials. Their mission is to develop North Dakota's telemedicine phi-losophy and strategy for developing an infrastructure capable of deliver-ing and providing !ccess to quality health and wellness services. Amongother things, the committee is taking inventory of current projects, exist-ing uses, and talking to physicians and hospital administrators in ruralareas about their needs. They are also looking at current and future tech-nology and infrastructure to make sure we are positioning ourselves as astate to make use of this technology.Time and input from all who are involved on this issue is extremelyimportant. I hope you will continue working to help overcome some ofthe challenges we face in capitalizing on the incredible benefits this tech-nology can have for people throughout our rural state. Your continuedinvolvement will pay dividends for many generations to come.19971

Telemedicine: An Emerging Technology with Exciting Opportunities for North Dakota

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Telemedicine: An Emerging Technology with Exciting Opportunities for North Dakota

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