We have received many calls asking us about coverage when going to a telemedicine approach due to the COVID-19 situation. The short answer is that your policy will cover it; just comply with state licensing laws if you or your patients start going across state lines. Some states have even dropped their restrictions on incoming help through telemedicine, but you have to check each state.
Telemedicine: Frequently Asked Questions
To support the medical profession during this unprecedented time, the following are answers to some frequently asked questions regarding telemedicine.
Are there malpractice risks specific to telemedicine?
Under normal circumstances, telemedicine is fairly low risk from a medical malpractice liability standpoint. 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.
What about documentation?
Documentation is critical. Telemedicine doesn’t 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.
Does informed consent need to be modified for virtual visits?
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. A telehealth informed consent form can be downloaded here.
What about licensure and crossing state lines?
During the COVID-19 pandemic, states have relaxed licensing requirements to encourage medical professionals to cross state lines to assist in the 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. Additionally, many states have licensing requirements specific to the use of telehealth that they are waiving during the COVID-19 emergency.
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.
Professional organizations that support telemedicine assist with licensure in multiple states. More information can be found at Interstate Medical Licensure Compact.
Does a patient’s insurance cover telemedicine?
During this crisis, Medicare, Medicaid, and many private insurers have relaxed restrictions around how telehealth can be used; however, healthcare insurers are not unified. As insurers continue to adapt coverage to this crisis, physicians should let patients know if it is unclear what their insurer covers to reimburse patient.
What about privacy concerns when using telemedicine?
To assist medical practices in accelerating implementation of telehealth services, the Health and Human Services (HHS) Office for Civil Rights (OCR) has made a change affecting HIPAA enforcement: Effective immediately, according to a reference guide created by the Center for Connected Health Policy, the HHS OCR will “exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.”
Therefore, even without meeting the usual encryption requirements for healthcare communication, practices that wish to swiftly implement greater use of telehealth using readily available, non-specialized interfaces, like FaceTime and Skype, may do so.
Helpful resources for Download:
CMS General Provider Telehealth and Telemedicine Tool Kit:
AMA Telemedicine Quick Set-up Guide:
Expansion of Telehealth and Licensing Waivers During Pandemic: