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 telehealth, as it does not draw a distinction between traditional care and telehealth. Providers 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 there malpractice risks specific to telehealth?
- Under normal circumstances, telehealth is fairly low risk from a professional malpractice liability standpoint. The Doctors Company’s data show that we had 38 closed claims involving telehealth from 2007 to 2018, out of 27,559 claims. While the number of telehealth 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 telehealth 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 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 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.
- Will I be reimbursed for patient visits I conduct using telehealth technology?
- Yes. Payers have long reimbursed practices for telehealth visits. As with any type of healthcare billing, practices must follow the most current payer guidelines. Providers are advised to follow their state licensing board and professional association websites for updates on the Public Health Emergency (PHE) declaration status and any applicable state Emergency Orders.
- What do I need to know about billing for telehealth visits?
- During the pandemic, 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 or Emergency Order. In a letter to state governors released on January 21, 2021, Acting Secretary of the U.S. Department of Health and Human Services (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 and dental offices are advised to be alert for third-party payer contract updates, legislative announcements, and PHE notices.
- What about documentation?
- Documentation is critical. In addition to what a practitioner would normally document during any visit, documentation for telehealth visits should include telehealth informed consent, confirmation of the patient’s identity, and the modality of telehealth being used (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 document the reasons for your decision in the patient’s record to mitigate liability risks. For more information see our article “Nine Tips for Telehealth Clinical Documentation.”
- Does informed consent need to be modified for virtual visits?
- Informed consent for the 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 that the patient recognizes those risks and agrees 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.
According to closed claims studies by The Doctors Company, inadequate informed consent communication between a healthcare provider and the patient/family is a top factor contributing to claims. The same standard of care applies to telehealth as to face-to-face visits, so practitioners 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 in the medical or dental record the results of the informed consent conversation with the patient. In addition, the provider should verify and authenticate the patient’s identity. For an example, see our “Telehealth Informed Consent” sample form.
- What should I do if the patient refuses recommended care such as lab work or converting the video visit to in-person?
- Patients who have not been deemed incompetent and/or assigned a legal guardian have the right to refuse care. Your responsibility as a healthcare provider 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. For an example, see our “Refusal to Consent to Treatment, Medication, or Testing” sample form.
- As individual states revise their Emergency Orders/PHE declarations, what do I need to consider in terms of my telehealth practice?
- During the COVID-19 pandemic, many states relaxed licensing requirements to encourage medical and dental professionals to cross state lines to assist in the emergency. Additionally, many states adjusted licensing requirements specific to the use of telehealth during the pandemic. As the pandemic draws on, some states are not renewing Emergency Orders. Providers must be aware of the current status of state-specific telehealth licensure and treatment requirements in all states in which they are practicing. This requirement applies to advanced practice professionals, social workers, and psychologists as well.In states that have not waived license requirements or have sunsetted or modified emergency orders, providers must comply.
Although answering or placing phone calls outside of a provider’s state of license is a common practice, it can present risks, both in terms of licensure and insurance coverage. Nonetheless, in an emergency, providers should exercise their best judgment and take the actions they deem necessary to treat their patients. Documentation is critical when the provider is acting under the duress of a patient emergency.
The Federation of State Medical Boards maintains a database of licensing requirements and waivers. To support telemedicine, some state licensing boards have agreed to streamline the process for licensure in multiple states. Find more information on the Interstate Medical Licensure Compact site. An interstate compact for dentists is being developed, so it has not yet been released for consideration. When it is, model legislation will be proposed for state ratification.
For more information, see our article “Interstate Licensure for Telehealth Can Fuel Medical Practice Growth.”
- What about privacy concerns when using telehealth?
- To assist healthcare practices in accelerating implementation of telehealth services, the HHS Office for Civil Rights (OCR) 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. As the pandemic wears on, practices that intend to maintain a telehealth practice indefinitely should not delay in moving to a fully compliant HIPAA solution in anticipation of changes in the PHE declaration and state Emergency Orders.
Find information on additional telehealth topics in our Telehealth Resource Center, including our article “Telehealth Tune-up: Preparing for Care After COVID-19.” For further guidance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or firstname.lastname@example.org.
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