7 Legal Issues Associated with Telemedicine Services

7 Legal Issues Associated with Telemedicine Services

Like traditional medicine, telehealth also involves medical chart reviews and other investigations. There are certain legal issues related to telemedicine.

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Telemedicine is a unique way to provide patient care, and as such it comes with distinctive legal challenges for telemedicine doctors. Like traditional

medicine,

telehealth

care

also involves

medical

chart

reviews and other investigations to have a clear understanding of the patient’s medical

history

and specific health

problems. Its major

advantage is that it offers a number of opportunities for efficient patient care. U.S. states have their own regulations regarding telehealth practices. Typically, telemedicine is governed by the law of the state in which the physician is located or the “home state” as well as the law of the state where the patient is located, or the “remote state.” Most states require the physician to be licensed in both home state and remote state.

Generally, telemedicine is viewed as a tool in medical practice and not as a separate form of medicine. Whatever be the method used to provide remote patient care, the standard of care remains the same as when a patient is seen in person. Clinicians who can provide telemedicine services include physicians, physician assistants, advanced practice nurse under the supervision of a physician. When telemedicine providers disregard industry standards and legal limits, it could lead to serious legal tangle.

Let us look at the major legal issues related to telemedicine.  Licensure:

For telehealth services, licensing rules and relevant

state medical practice laws are typically based on the location of the patient at the time of the consultation rather than that of the physician. Licensure can be a hindrance and continues to be a major administrative burden for many physicians. Healthcare providers must carefully understand the requirements of each state or else face the risk of unlicensed practice of medicine. It is important for providers to verify their patients’ location at the time of the consult and make sure that they have the proper license to provide the requested services.  Standard of care: Whether traditional medical care or telemedicine, clinicians have to meet the prescribed standard of care and deliver www.mosmedicalrecordreview.com

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superior quality services. Telehealth providers must have a clear idea of the standard of care that applies in telehealth encounters to stay clear of malpractice liability. In traditional medical malpractice cases, the standard of care may be a local or national standard. In states that follow the locality rule, provider liability is calculated based on local customs. The locality that is used as a reference point can be the provider’s community or the entire state. Some states compare the provider’s conduct to prevailing national practices rather than that of the state. When it comes to telehealth where the patient and provider are in two separate locations, the question arises as to which community –- the patient’s or the provider’s – should be used as the reference point. Under the locality rule, telehealth providers that provide care to patients in multiple communities across the country or even globally will have to adhere to multiple standards of care. Providers will have to familiarize themselves with the state laws and guidance related to telehealth standards of care. States such as New York and California have clarified that the standard of care for telehealth services is the same as that for face-to-face services. States may have set specific standards that affect the prevailing standard of care such as some states requiring verbal consent from the patient before a telehealth consultation can take place.  HIPAA compliance: Just as traditional medicine, telemedicine must also meet all HIPAA requirements. Telemedicine providers must make sure that they are in a location where there is no risk of somebody

overhearing

the

virtual

visits.

They

must

utilize

technology that is HIPAA-compliant – it should have fully encrypted data transmission and ensure secure connections. If providers are partnering with another business or a business process outsourcing company to provide telemedicine services, they must make sure that those partners are also HIPAA compliant.

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 Physician – patient relationship: Many U.S. states prohibit the use of telemedicine services before a physician-patient relationship is established

via

an

in-person

examination.

Another

thing

to

remember is that informed consent requirements may also vary from one state to another.  Fraud and abuse risk: Telemedicine providers should be aware of the fraud and abuse risk under state and federal false claims acts, self-referral laws, and anti-kickback statutes. Significant liability may result from failing to follow state law regarding licensure and scope of practice, and from billing government payers such as Medicare and Medicaid without following appropriate regulations.

Offering or accepting free or discounted telemedicine services or equipment also carries the risk of liability.  Tele-prescribing: Providers should understand the restrictions that are in place regarding the use of telemedicine to prescribe controlled

substances.

According

to

the

Ryan

Haight

Online

Pharmacy Consumer Protection Act, or the Haight Act, providers cannot prescribe a controlled substance without examining the patient in person. Exception to this rule is allowed when the patient is being treated in a hospital or clinic, or is in the physical presence of another healthcare provider. Again, state laws vary on this.  Telemedicine coverage: Medicare covers telemedicine only if 

the

service

utilizes

real-time,

two-way

audio-visual

telecommunications 

the patient is at a qualified originating site such as a hospital or physician practice in a rural Health Professional Shortage Area or a county outside a Metropolitan Statistical Area



the provider is a type authorized for telemedicine, such as a physician or physician assistant, and credentialed with the patient site facility, and



the service is approved by CMS for telemedicine

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For Medicaid, states have considerable flexibility to decide whether to cover telemedicine and what restrictions they impose on telemedicine services. Private payer coverage for telemedicine also varies a great deal. Therefore providers should carefully review state laws before billing Medicaid, and scrutinize their payer contracts before billing private health insurers.

Telemedicine-related legal risks can be minimized if clinicians comply with the licensing rules, ensure appropriate medical documentation, and follow the same standards of care as they would for in-person treatments. As a medical review company assisting medical malpractice lawyers as well as physicians, we understand that technology can help physicians adhere to the applicable regulations and rules that govern telemedicine services.

There are telemedicine applications that enable physicians to incorporate into their workflows appropriate consent forms and checks on patient locations. This helps to follow the rules relevant to their practice.

Physicians can also undergo training in delivering telemedicine services, which will ensure that they follow all rules and regulations and also that they are providing the best possible care for patients in the new setting.

www.mosmedicalrecordreview.com

918-221-7791