Updated February 16, 2021: As healthcare mobilizes during the coronavirus (COVID-19) pandemic, more practices are attempting to dramatically ramp up telehealth to provide care and enhance safety.
Telemedicine for Medical Practices During COVID-19
If your practice is among those seeking to ramp up telemedicine visits for patients during the coronavirus pandemic, there’s good news—you’re covered for liability and we can point you to resources to get you started.
As the outbreak spreads, many practices are grappling with declines in patient visits. Virtual visits may give patients and practices alike peace of mind from the worry of the spread of infection. For example, phone use can reduce viral exposure during office visits. Some practices are creating cell-phone waiting areas, instead of gathering patients in their waiting rooms. After patients check in, they wait in their cars with their phones, ready to receive a call saying their provider is ready for them. While not true telehealth, cell-phone waiting shows how practices can use existing technologies to reduce COVID-19 exposure.
While telemedicine has a spectrum of uses, there are two critical channels in which it can play a critical role during the current crisis:
- It can be an essential tool both in keeping your patients at home, and in reducing the traffic and potential contagion in your offices. Many typical office visits—such as explaining test results and follow-up visits, can be accomplished via telehealth rather than in-person office visits.
- It can be an invaluable tool in screening potential coronavirus patients, especially with the current limited access to testing. If patients fear they have the virus, you can guide them in a video call through a symptom check—if they are not currently displaying symptoms you can schedule for another video call. If they are exhibiting symptoms and you want to see them in-person, you can schedule them to come at times designated for sick visits and better separate them from patients who need to come in for well visits.
Some practices may not think they are using telemedicine when in fact they already are. Telemedicine encompasses a range of care options, from remote presence technologies that allow specialists to serve patients in rural locations, to simply using a smartphone or landline to talk to a patient.
Some states consider phone consultations to be telemedicine. If a practice is not prepared to implement new technology, it can consider making greater use of phone consultations—especially for established patients—during this time. Whether or not a phone consultation is reimbursable depends entirely on the payer. Generally speaking, visits that involve both audio and video are more likely to be reimbursed. In situations where audio-only visits are reimbursed, physicians should be aware that reimbursements often are higher if both audio and video are used.
Telehealth: Get Started Today
Medical Advantage, a member of the TDC Group of companies, helps organizations quickly launch telehealth services and provides support for implementation and training. And they do it all remotely.
How to Minimize Virtual Medicine Liability Risk
Under usual circumstances, telemedicine is comparatively low risk. However, it does bring specific risks to patient safety and physician/practice liability. Get insights from Dr. David L. Feldman, chief medical officer of The Doctors Company Group, in this KevinMD podcast.
Telemedicine in the COVID-19 Era
Telehealth, or virtual care, is more popular than ever. The COVID-19 pandemic has seen to that, but what are the patient safety and risk management issues related to virtual visits, and how has the pandemic affected all of this? Get insights from Dr. David Feldman, chief medical officer for The Doctors Company.
Telehealth Risks, Safety, and Malpractice: Know Before Dialing In!
Dr. David L. Feldman, chief medical officer of The Doctors Company Group, covers risk management basics for telehealth and techniques to overcome barriers, including recent attempts to make it easier for physicians to practice from state to state.
Liability Risks in Telehealth
Dr. David L. Feldman, chief medical officer of The Doctors Company Group, covers the top telehealth liability risks, keys to informed consent, and AI and automation considerations for virtual care.
Telehealth Best Practices
Consultants from Medical Advantage Group, a member of The Doctors Company Group, share lessons learned from helping many practices implement virtual visits with the onset of COVID-19.
Risk Management Strategies for Telehealth
Learn the risk management basics of using telehealth in your medical practice, which is especially important during the COVID-19 emergency. David O. Hester, director, department of patient safety and risk management, SE region, The Doctors Company, presents alongside other experts in this webinar.
Telemedicine: Frequently Asked Questions
To support the medical profession during this unprecedented time, the following are answers to some frequently asked questions regarding telemedicine.
The federal government has, through the federal Public Readiness and Emergency Preparedness Act (PREP Act), taken action to provide medical liability protections to healthcare providers using telehealth during the COVID-19 pandemic to order and administer Covered Countermeasures. Covered Countermeasures are those drugs, devices, and biological products used “to diagnose, mitigate, prevent, treat, or cure” COVID-19.
The PREP Act provides “liability protections to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from, the manufacture distribution, administration, or use of certain medical countermeasures (Covered Countermeasures), except for claims involving ‘willful misconduct,’ as defined in the PREP Act.”
Recognizing the important role telehealth plays in facilitating public health mitigation strategies and providing patient care, former U.S. Health and Human Services (HHS) Secretary Alex Azar issued an amendment to “help maximize the utility of telehealth” in responding to and preventing COVID-19 infections. On December 3, 2020, then-Secretary Azar issued the fourth amendment to the declaration, activating the PREP Act to incorporate telehealth services providers within the “Covered Persons” definition and expressly permitting cross-border practice, and waiving some license requirements, in the ordering and administering of Covered Countermeasures.
This amendment to the law is retroactively effective to February 4, 2020, and remains in effect through the final day of the federal declaration of emergency or October 1, 2024, whichever occurs first.
The Doctors Company’s medical professional liability policy covers telemedicine, as it does not draw a distinction between traditional care and telemedicine. Physicians should check with their professional liability insurer about coverage. The market, including traditional medical liability insurers, recognizes that telemedicine has become a fact of life. Our chief medical officer, David Feldman, MD, MBA, FACS, puts it this way: “As physicians, we often think telehealth is a completely different way of practicing, but it really isn't—it’s an extension of what we already do.”
Under normal circumstances, telemedicine is fairly low risk from a medical malpractice liability standpoint. The Doctors Company’s data shows that we had 38 closed claims involving telemedicine from 2007 to 2018, out of 27,559 claims. While the number of telemedicine claims has risen rapidly since 2015, most likely due to increased use, the numbers are still very small. This may be because the types of service provided via telemedicine tend to be for low-acuity conditions, which generally do not result in a claim. That said, under normal circumstances, a clinician encountering a potentially high-acuity condition via telemedicine who does not refer the patient for an office visit or to the Emergency Department could face a potential liability risk if an adverse event were to occur. That liability is essentially the same liability the provider would face after failing to make a needed referral following a face-to-face visit.
Yes. Payers have long reimbursed practices for telehealth visits. As with any type of medical billing, office practices must follow the most current payer guidelines. Medical offices are advised to follow their state medical society and professional association websites for updates on the Public Health Emergency (PHE) declaration status.
During this crisis, Medicare, Medicaid, and many private insurers have relaxed restrictions around how telehealth can be used. Many state-level concessions were and are still dependent on the presence of a current PHE declaration. In a letter to state governors released on January 21, 2021, Acting Secretary of HHS Norris Cochran extended the PHE an additional 90 days and signaled his intent to maintain the PHE through 2021 (see PHE message to governors). The letter also advises that governors will be given a 60-day notice before the PHE is rescinded.
The Centers for Medicare and Medicaid Services (CMS) included telehealth and communications technology in the final 2021 Physician Fee Schedule (see Federal Register Rule 86 FR 5020). Significant remote patient monitoring clarifications include refining the interactive communication definition to incorporate “care management services and synchronous, real-time interactions”; permitting informed consent to be obtained at the initiation of service instead of in advance; clarifying the supervisory requirements for service provision by “auxiliary” personnel; and expanding coverage to acute conditions. CMS provides a brief summary of the COVID-19 PHE Category 3 telehealth billing updates in its December 1, 2020, Fact Sheet. Medical offices are advised to be alert for third-party payer contract updates and changes when the PHE is rescinded and when state legislatures reconvene.
Documentation is critical. In addition to what a physician would normally document during any visit, telehealth visits should include telehealth informed consent, confirmation of the patient’s identity, and the modality of telemedicine being used (telehealth platform or video service). If the patient has taken vital signs such as temperature, pulse, blood pressure, or weight, the information should be documented as “patient provided.”
Telemedicine does not change the fact that physicians should use their best clinical judgment and document their medical reasoning in patients’ medical records. If a patient’s complaint would generally warrant an in-person visit, the physician should weigh the risks of any emergent condition against the risks of COVID-19 exposure for this patient, make the call, and document the reasons for this decision in the patient’s record to mitigate liability risks.
Informed consent for the medical treatment rendered during a virtual visit does not need to be modified. However, there are risks that are unique to virtual visits that should be addressed with the patient, ensuring they recognize those risks and agree to proceed with the virtual visit. Electronic communication risks include, but are not limited to, ease in forwarding, the potential for interception, and/or possible disruption or distortion due to technical failures. Inadequate informed consent communication between a healthcare provider and the patient/family is a top factor contributing to claims, according to closed claims studies by The Doctors Company. The same standard of care applies to telehealth as to face-to-face visits, so physicians should make certain an informed consent discussion occurs when using technology or the phone to treat a patient. An informed consent form signed by the patient, along with the documented informed consent discussion, is ideal—the provider of the telehealth platform may be able to advise you how to incorporate your informed consent document. Barring this, healthcare providers should document the results of the informed consent conversation with the patient in the medical record. In addition, the provider should verify and authenticate the patient’s identity. Here is one example of a telehealth informed consent form.
During the COVID-19 pandemic, states have relaxed licensing requirements to encourage medical professionals to cross state lines to assist in the emergency. Additionally, many states have licensing requirements specific to the use of telehealth that they are waiving during the COVID-19 emergency. The Federation of State Medical Boards is maintaining a database of licensing requirements and waivers. In states that haven’t waived license requirements, physicians should comply.
While answering or placing phone calls outside of a physician’s state of license is a common practice, it can present risks, both in terms of licensure and insurance coverage. Nonetheless, in an emergency, physicians should exercise their best judgement and take the actions they deem necessary to treat their patients. Documentation is critical when a physician is acting under the duress of a patient emergency.
To support telemedicine, some state licensing boards have agreed to streamline the process for licensure in multiple states. More information can be found at Interstate Medical Licensure Compact.
To assist medical practices in accelerating implementation of telehealth services, the HHS Office for Civil Rights (OCR) has made a change affecting HIPAA enforcement: As of January 20, 2021 HHS OCR will continue to “exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”
Note that public-facing products, such as Facebook Live, Twitch, or TikTok, should not be used for telehealth. For additional guidance, see the Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency.
The federal notification, however, does not impact state privacy laws, and you should check your state for specific requirements.