Telehealth: Frequently Asked Questions

Sue Boisvert, BSN, MHSA, Patient Safety Risk Manager II, The Doctors Company

As the evolution of telehealth continues, we address questions asked by medical and dental practices.

• Does my professional liability policy cover telehealth?
• The Doctors Company’s professional liability policy covers licensed practitioners without distinction between traditional care and telehealth services. Practitioners are strongly encouraged to determine local licensing requirements by checking with the licensing boards in the jurisdictions where they practice and in the states where their virtual patients reside. Practitioners who are not insured by The Doctors Company should check with their professional liability insurer about coverage.
  
  The market—including traditional medical and dental professional liability insurers—recognizes that telehealth has become a fact of life. Our Chief Medical Officer, David Feldman, MD, MBA, FACS, puts it this way: “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.”

• Are any malpractice risks specific to telehealth?
• Telehealth is fairly low risk from a malpractice exposure standpoint. Our data indicate that, out of 26,370 claims closed from 2012 to 2022, 50 of the claims involved telehealth. More than half of those claims involved an allegation of failure or delay in diagnosis. The standard of care for telehealth patients is the same as for in-person care. If diagnosing a condition requires a hands-on assessment, the patient must be seen in person.
  
  Even though the services provided via telehealth tend to be for low-acuity conditions, a clinician encountering a potentially high-acuity condition via telehealth 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 occurs. That liability is essentially the same vulnerability the provider would face after failing to make a needed referral following a face-to-face visit. In a professional liability claim, the question is invariably whether the healthcare practitioner delivered care and treatment consistent with that of other similarly trained practitioners under the same or similar circumstances.

• Will I be reimbursed for patient visits I conduct using telehealth technology?
• Yes. Payers have long reimbursed practices for telehealth visits. With the practical necessities created by the pandemic, the scope of services that may be compensated and the amount allowed have been revised. Some payers differ on what constitutes a telehealth visit and whether telephone calls and asynchronous services (such as those by portal or email) will be reimbursed. As with any type of healthcare billing, practices must follow the most current payer guidelines and are encouraged to review their payer-practitioner agreements to determine compliance requirements and levels of reimbursement.

• What can telehealth providers expect when the Public Health Emergency (PHE) expires?
• Medicare and Medicaid: On February 9, 2023, the U.S. Department of Health and Human Services (HHS) released its “Fact Sheet: COVID-19 Public Health Emergency Transition Roadmap,” to advise practitioners and healthcare organizations on changes to expect when the PHE expires on May 11, 2023. The following guidance on telehealth appears in the fact sheet:

Major Medicare telehealth flexibilities will not be affected. The vast majority of current Medicare telehealth flexibilities that Americans—particularly those in rural areas and others who struggle to find access to care—have come to rely upon over the past two years, will remain in place through December 2024 due to the bipartisan Consolidated Appropriations Act, 2023 passed by Congress in December 2022.

Medicaid telehealth flexibilities will not be affected. States already have significant flexibility with respect to covering and paying for Medicaid services delivered via telehealth. State requirements for approved state plan amendments vary as outlined in CMS’ Medicaid & CHIP Telehealth Toolkit. This flexibility was available prior to the COVID-19 PHE and will continue to be available after the COVID-19 PHE ends. Similar to Medicare, these telehealth flexibilities can provide an essential lifeline to many, particularly for individuals in rural areas and those with limited mobility.

• For more information on CMS telehealth changes after the PHE is lifted, please visit Telehealth policy changes after the COVID-19 public health emergency.
• HIPAA/HITECH: On March 17, 2020, the Office for Civil Rights (OCR) released a Notification of Enforcement Discretion that stated “it will 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.” The notice (as determined by 42. U.S.C. 247d) states that it “will remain in effect until the Secretary of HHS declares that the public health emergency no longer exists, or upon the expiration date of the declared public health emergency, including any extensions.”
• Practitioners and organizations should already be working to ensure that their telehealth systems are fully compliant with federal and state privacy regulations.

• What are the special considerations for documenting telehealth services?
• Documentation is critical. In addition to what a practitioner would normally document during any visit, documentation for telehealth visits should also include telehealth informed consent, confirmation of the patient’s identity, and the modality of telehealth being used (that is, the telehealth platform or video service). If the patient has taken vital signs (such as temperature, pulse, blood pressure, or weight), document the information as “patient provided.”
  
  Telehealth does not change the fact that practitioners should use their best clinical judgment and document their reasoning in patients’ records. If a patient’s complaint would generally warrant an in-person visit, weigh the risks of any emergent condition against the risks of COVID-19 exposure for this patient, make the determination on the type of examination required, and mitigate liability risks by documenting the reasons for your decision in the patient’s record. For more information see our article “Nine Tips for Telehealth Clinical Documentation.”

• Is informed consent for telehealth required?
• A telehealth-specific informed consent discussion is considered best practice, although not all states require written consent. Practitioners that use telehealth should be cognizant of their state’s definition of telehealth and informed consent requirements. The telehealth consent discussion should address the potential for technology disruptions and backup plans, patient and practitioner identification, and the patient’s right to decline a virtual visit and request an alternative, such as an office visit. Typical telehealth risks include the potential for converting to an in-person visit based on the patient’s condition, health information privacy and security risks based on the patient’s environment and communication technology, and technology disruptions. For more information, read our article “Informed Consent: Substance and Signature.” Find a sample Telehealth Informed Consent form on our Informed Consent Sample Formspage.

• What should I do if the patient refuses recommended care such as lab work or converting the video visit to in-person?
• Patients not deemed incompetent and/or assigned a legal guardian have the right to refuse care. Your responsibility as a healthcare practitioner is to advise the patient of the benefits of the recommended treatment, the risks of failing to follow the recommendations, and any potential alternatives. Consider asking the patient about the possibility of involving a significant other in the discussion. Sometimes the presence of a supportive family member can be helpful. In addition, if the patient’s clinical condition is significant, the support person can call 911 if needed. If the patient persists in refusal after discussion, adjust the treatment plan accordingly and document the discussion in the patient’s record. See our article “Informed Refusal” and our Refusal to Consent to Treatment, Medication, or Testing sample form.

• Do I need a special license to treat patients across state lines?
• Healthcare professionals who intend to provide telehealth services across state lines must be licensed in the state where they practice, and they are responsible for determining licensure requirements for the state where the patient is receiving care. Many states require a full license to treat and prescribe for their constituent patients via telehealth. Some states will accept an Interstate Medical Licensure Compact license. A few states allow “infrequent” practice without a license or practice in collaboration with a provider who is licensed in the state where the patient is located.
  
  Practitioners who intend to practice across state lines (or who are already doing so) should check with the appropriate licensing boards in each state where they intend to provide telehealth services and obtain appropriate credentials before accepting patient appointments. For more information, see our article “Interstate Licensure for Telehealth Can Fuel Practice Growth.”

• I have patients who attend colleges in other states. May I continue to prescribe medications to them via telehealth?
• The following strategies can help you address the challenge of caring for patients who are out of state for school.
  
  Follow the licensing guidelines and state statutes described in the “Do I need a special license to treat patients across state lines?” section. The practitioner can review the academic calendar with the patient and family (as appropriate) and make arrangements to see the patient for medication monitoring during a visit home. Colleges and universities have student health centers. With permission from the patient or parent/guardian, consider developing a collaboration with the student health center.

• One of my advanced practice clinicians (APCs) is moving to another state. May I continue using the APC to provide services to my patients via telehealth?
• This is a very challenging and complex scenario. Supervising practitioners who are considering this option should consult with an attorney who is familiar with healthcare laws in their home state, as well as an attorney in the state where the APC will be practicing. Questions to consider include specific licensure requirements for both parties in each state, how supervision will be managed in the APC’s home state (if required), the scopes of practice for prescribing and treating in both states, and a review of third-party payer contracts.

For further guidance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.

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