Trisheet Chatterjee, Partner and Sarvesh Saluja, Principal Associate, J Sagar Associates discuss the progress that India has made with telemedicine due to the current pandemic and how the OSP Guidelines is a hurdle currently for the growth of telemedicine in India which needs to be addressed at the earliest
In the words of American President John F Kennedy, “Change is the law of life. And those who look only to the past or present are certain to miss the future.” President Kennedy’s words could not be more appropriate in the current global crisis. Change is the inevitable consequence of the COVID-19 pandemic, and the novel virus shows no signs of abating anytime soon. In such uncertain times, when our very way of life and, consequently, when businesses are experiencing change on such a mass scale, the law will inevitably follow suit. After all, laws are meant to regulate human conduct and business.
The spirit of the changing requirements can be seen through the efforts to legalise the online conduct of various businesses. Among such new regulations, the Ministry of Health and Family Welfare, Government of India, released the Telemedicine Practice Guidelines (‘Guidelines’) on March 25, 2020. The Guidelines are among the more important ones introduced by the Government of India. Their importance can be gauged from the abysmal doctor-patient ratio in India, and the importance of physical distance for doctors while treating their patients during the pandemic. The Guidelines have sought to provide a framework for regulating telemedicine practice in India and provide norms and protocols relating to physician-patient relationship, issues of liability and negligence, evaluation, management and treatment, informed consent, continuity of care, referrals for emergency services, medical records, privacy and security of patient records, exchange of information, prescribing and reimbursement, health education, and counselling.
The Guidelines are an encouraging step in the right direction. However, there seems to be a grave omission which stems from another set of regulations, ie. ‘Terms and Conditions – Other Service Provider Category’, dated August 5, 2008 (‘OSP Guidelines’). The OSP Guidelines prescribe registration requirements for entities providing services falling under the ambit of Application Services, which includes telemedicine. The impact of this inclusion has several unintended consequences, as it means that all the requirements under the OSP Guidelines, including registration, become applicable to anyone providing telemedicine services. Among others, a major consequence is the location from which telemedicine services can be provided. The registration under the OSP Guidelines is location- specific, and services must be provided from the specific location/s (approved by / intimated to the Department of Telecom (‘DoT’) only. This implies medical practitioners would be able to provide services only from certain specified location/s, and the flexibility that the Guidelines aim to achieve would be a distant dream. Another consequence would be the cost and time for filing annual returns and providing information with regard to changes in network diagram to DoT.
A look at the OSP Guidelines would reveal that it intends to provide a framework for network- specific regulations in relation to business process outsourcing type of businesses. In fact, the Telecom Regulatory Authority of India, the telecom sector regulator, in its Consultation Paper dated March 29, 2019, recognised that “the registration of OSP was initially required essentially for the purpose of: a) statistical information, b) ensuring their activities do not infringe upon the jurisdiction of other access providers, and c) providing special dispensation to boost the BPO sector.”
In the current context, applicability of the OSP Guidelines to telemedicine practice, as envisaged under the Guidelines, appears impractical. It is pertinent to note that the Guidelines seek to provide an avenue for registered medical professionals to provide telemedicine services. Classifying registered medical professionals as agents under the OSP Guidelines would serve only to dilute the intent and purpose of the Guidelines. The importance of telemedicine services in today’s COVID-19 scenario has evolved immensely and they are likely to fall in the category of essential services in the near future. The sector needs some handholding and flexibility in the initial stages of its evolution. The dichotomy and harsh practicalities of regulating telemedicine services under the Guidelines as well as the OSP Guidelines may adversely impact the development of the sector. In the present scenario, it makes imminent sense to relieve the telemedicine sector of the OSP Guidelines’ network-related requirements. Light touch network-related requirement may be included as part of the Guidelines to obviate dual regulation and strike an appropriate balance between the end, ie. the intended objectives of the Guidelines, and the means, ie. network-specific regulations under the OSP Guidelines.